D.N. Sinha, J.
1. This is an appeal from an order of Basu, J., dated 5 March 1965, whereby he made the rule absolute and issued a writ in the nature of mandamus restraining the State of West Bengal from removing the respondent from the post of Registrar, Rent Controller's office, Calcutta, otherwise than in due course of law, and not to give effect to certain orders in that behalf.
2. The post of a Registrar of the Rent Controller's office, Calcutta, has been created by Statute, namely, Section 26 of the West Bengal Premises Tenancy Act, 1956 (West Bengal Act 12 of 1956) (hereinafter referred to as the said Act). The relevant provisions are as follows:
26. Appointment of Controller, Additional and Deputy Controllers and Registrars.--(1) The State Government may, by notification, appoint a person to be the Controller for any area or part of area to which this Act extends to exercise the powers and discharge the duties of the Controller in accordance with the provisions of this Act in such area or part.
(2) The State Government may also, by notification, appoint any person to be an Additional Controller or a Deputy Controller or a Registrar or Deputy Registrar for any area to which this Act extends.
* * *(4) A Registrar or a Deputy Registrar shall exercise such of the functions of the Controller relating to the rent deposited under Section 21 as may be delegated to him by the Controller in writing.
3. The respondent Hirendra Nath Banerjee was originally in the clerical establishment of the Rant Controller's office. He was subsequently promoted to the office of the Deputy Registrar and on or about 13 June 1980, he was appointed permanently as Registrar of the Rent Controller's office, Calcutta. The relevant part of the notification runs as follows:
Calcutta, No. 9088 L.R., 13 June 1960
In exercise of the power conferred by Sub-section (2) of Section 23 of the West Bengal Premises Tenancy Act, 1956 (West Bengal Act 12 of 1956), the Governor is pleased to appoint Hirendra Nath Banerjee, Deputy Register, Rent Control office, Calcutta, permanently as Registrar for Calcutta, as defined in Clause (a) of Section 2 of the said Act with effect from the date on which he takes over charge.
4. The respondent's pay-scale was Rs. 500-700, On 26 March 1964, an order was made by the Governor of West Bengal to the following effect:
The Governor is pleased to allow Hirendra Kath Banerjee, Registrar, Rent Control office, Calcutta, to act until farther orders as Certificate Officer, Mayurakshi revenue divisions, Birbhum, with headquarters at Sari with effect from the date he takes over charge.
5. The wording of this notification is some what peculiar. It is not the case of the appellant that the respondents ever made an application himself or voluntarily wished at any time, to be transferred as Certificate Officer, Maynrakshi revenue divisions, Birbhum, and the use of the expression 'allow' has occasioned certain comments which will be presently noticed. The respondent's complaint in this case is against this order removing him from Calcutta was made because the respondent had taken 'strong hands' in preventing the accountant of the office of the Rent controller from indulging in unfair and unlawful activities, and the accountant being in 'friendly terms' with the Rent Controller, the respondents fell in disfavor with the Rent Controller himself. It is further alleged that this accountant had been warned for his irregular activities and dereliction of duties by the previous Rent Controller but he continued to indulge in the same activities and the respondent's recommendation for the transfer of the said accountant from his post was turned down by the Rent Controller, and when the respondent became strict, the Rent Controller took upon himself the obligation to remove the respondent from the post of the Registrar. It is claimed that these allegation are allegation of mala fides on the part of the Rant Controller. The second ground taken is that the respondent's post is not transferable and therefore, the order of transferable is illegal and invalid. A third point had been taken is that the petition but not sufficiently developed in the Court below, but we allowed it to be taken and argued fully in the Court of appeal. It is as follows: The complaint is that the office of the Certificate Officer, Mayurakshi revenue divisions, Birbhum, to which the respondent had been transferred, has not been validly orated and is not in conformity with the provisions of the Bengal Public Demands Recovery Act (3 of 1913) and as such, the respondent could not be transferred to such a post. There are various other points taken which we shall notice, but they are not of much importance, as in our opinion, these three points are sufficient to dispose of the appeal. A point has been taken, namely, that emoluments of the office of the Certificate Officer, Mayurakshi revenue divisions. Birbhum were less than those of the Registrar, Rent Controller's office, Calcutta, and as such the order of transfer amounted to a demotion and could not be made except as a disciplinary measure after giving opportunity to the respondent to defend himself of any charges that may be put forward. A further point was taken, namely, that the transfer was not to a 'headquarter' station. This point, however, has not been pressed before us.
6. The point of mala fides has found favour with the Court below. It has been made in the petition against the Rent Controller which have undoubtedly been made in the petition and they involve respondent 3 in the original application, namely, the Rent Controller has not in his affidavit, made his denials move comprehensive and vigorous. In our opinion, however, a charge of mala fides must be specific and with sufficient particulars, so that the allegations. If true, may being home the allegations in the petition are somewhat vague. It is stated that the accountant of the Rent Controller's offices was indulging 'in unfair and unlawful activities' without giving particular of what these unfair and unlawful activities were. Again expressions like 'irregular activities' and 'dereliction of duties' have been used in Para. 6 of the petition but no particulars have been given. Then again, the charges is that the Rent controller took upon himself the obligation to Registrar. There is absolutely no evidence to show that the Rent controller took any hand in transferring the respondent. It cannot be denied that the Rent Controller was not the authority who could transfer the respondent. Therefore, the charge that he is involved in it. The affidavit-in-opposition filed by the Rent Controller in which there are general denials might have been more comprehensive but on the other hand it must be remembered that the allegations in the petition regarding the charge of mala fides are also in general terms and are lacking in sufficient particulars. On the strength of it, and in the absence of any other evidence, I am not prepared to come to the conclusion that the allegations of mala fides have either been admitted or proved. I now come to the point as to whether the respondent's post was a transferable one. As I have stated above, the post was created by a statute, namely Section 26(2) of the West Bengal Premises Tenancy Act, 1956. It is a specific post under a specific stature which contains no provision for transfer. The respondent did not belong to any cadre post, but was bolding that post of the Deputy Registrar and he was appointed, according to the notification relation to his appointment set out above, 'permanently as Registrar for Calcutta' as defined in Clause (a) of Section 2 of the said Act (12 of 1956). Before dealing with this point of transfer, it will be convenient to see how the post of the Registrar, Rent Controller's office, Calcutta, was to be filled up and how the post of the Certificate Officer, Mayurakshi revenue divisions, Birbhum, was created, the latter would be relevant also on the other point, namely, as to whether the office had been validly created, It will be observed that under Section 26(2) or the West Bengal Premises Tenancy Act, 1956, the Governor may appoint 'any person' to be a registrar for any area to which the said Act extends. On or about 9 February 1951 a notification was issued, presumably under the earlier Rent control Act, by which a member of the West Bengal Junior Civil service became eligible to hold the post of a Registrar in the Rent Controller's office, provided he possessed the specified qualifications, namely, three years' experience of treasury work and capacity for controlling charge office establishments. The West Bengal Junior Civil Service, of the 'W.B.J.C.S.' as it is called, is filled up by members who hold cadre posts. It must have been felt that confining the appointment of a registrar to this cadre would be in conflict with the provisions of Section 26(2) of the West Bengal Premises Tenancy Act, 1956, and that is shy a notification was issued by the State Government dated 23 April 1959 wishes is annexure B to the affidavit in opposition, made under Article 309 of the Constitution. According to this notification, the post of a registrar in the office of the Rent controller, Calcutta could be filled up in two ways. One was by transfer of W.B.J.C.S. officers with treasury experience and in such a case it was necessary to have three years' experience of treasury work and capacity for controlling charge office establishments. The second method or felling the post was by promotion of the Deputy Registrar, Rent controller's office, Calcutta. In this instance the requisite qualification is three years' continuous service in the post of the Deputy Registrar. The respondent was appointed under the second category, having been Registrar. It will be observed, therefore, that two distinct methods of appointment have been visualized, one from a cadre post and the other from non-cadre post. Both parties have admitted that the wordings used in the orders of appointment in the two instances are not identical. When a member of the WBJCS is appointed as a Registrar, he is appointed 'until further orders'. Where, however, he is appointed under the second category, the words used are different. He is either appointed temporarily or permanently. In the present case, the respondent was appointed 'permanently' to the post of the Registrar. The position therefore, is that the post of a Registrar of the Rent Controller's office, Calcutta, is a specified post created by a particular stature. The statute sues not contain any provision for transfer. The provision of appointment contained in the statute visualizes the appointment of 'any person' and this is clearly recognized in the rules made under Articles 309 of the Constitution. In other words, A person who is not in a cadre post may be appointed. It sues not seem to be in accord with commonsense that a person who is not in any cadre post, but who has been specifically appointed 'permanently' to a statutory post of a particular description, can be transferred at will to some other post which might involve work of an entirely different nature. Before I proceed to consider the arguments advanced on behalf of the appellant on this point, it will be convenient to refer to a decision of the Allahabad High Court which deals with the exact point in the case, Dr. Prem Beharilal Saksena Lucknow : AIR1959All629 . The petitioner was one Dr. Prem Behari Lal. He was appointed by the Government of Uttar Pradesh to the post of anesthetist at the State hospitals at Kanpur, consisting of two hospitals, namely, the Ursla Horsman Memorial Hospital and Sri Lajpat Rai Hospital. He was appointed after selection by the Public service commission and in the advertisement inviting application it was stated that the anaesthetist would work in the Government hospital in the city of Kanpur, under the directions of the Civil Surgeon. The doctor was appointed in 1951. He tried his best to be accepted as belonging to the State Medical Service which is manned by persons bolding a cadre post but this was refused. In October 1957 he was served with an order transferring him from Kanpur to the S.P. Gupta Hospital at Varanasi. He represented that this appointment was to a specified post and objected to the transfer to Varanasi, but stated that he was willing to be so transferred if his post was considered to be a cadre post as he would then get the advantages of a cadre post including its scale of pay. The Government refused to treat him as holding the cadre post and insisted upon his order of transfer being carried out. Thereupon, he made an application in the Allahabad High Court under Article 226 of the Constitution. It was held that the petitioner was recruited and appointed to a particular post which in its very nature was located at Kanpur and had to he performed at that place. This was not an appointment generally to the post of an anaesthetist but was to the post attached to the two hospitals at that place. Therefore, the petitioner could not be transferred to Varanasi and that Rule 15 of the Fundamental Rules which gives power to the Sate Government to transfer a Government servant from one post to another did not apply, of in any event did not authorize the transfer, because before the said rule could be availed of the Government servant must belong to a category of servants which can, in accordance with the terms of his appointment, he sent to another post. It was held that whither a Government servant had been appointed to a specific post and that post was in its very nature such that it could be performed at the particular place only, he could not under this rule be transferred to another post. In such a case the transfer order would in fact run inconsistent with the appointment itself which was not generally to any class of poets but to a specified post only.
7. I now come to the meaner in which the appellant supports the order of transfer. Reliance is placed upon Section 24(1) of the West Bengal Service Rules (which corresponds to Rule 15 of the Fundamental Rules) and which runs ea follows:
24. (1) A Government servant may be transferred from one post to another:
Provided that except.
(1) on account of inefficiency or misbehavior, or
(ii) on his written request,
he shall not be transferred substantively to, or except in a case covered, by Rule 65, appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lies, or would hold a lies had it not been suspended under Rule 20.
8. It is argued that the respondent is a Government servant and he is governed by Rule 24(1) and, therefore, Government may transfer him from one post to another. Looking at Rule 21(1), there can be no doubt that it is a general provision for the transfer of Government, servants from one post to another. Under this rule, the only restriction placed on the power of transfer is that no transfer can be made to a post carrying less pay than the pay of the permanent post on which a Government servant holds a lien. Even this restriction does not apply when the transfer is on account of inefficiency or misbehaviour or at the written request of the Government servant concerned. At this stage, it would be relevant to point out a fact upon which the Court below has commented. This is with reference to the order of transfer dated 26 March 1964 by which the Governor was pleased to 'allow' the respondent to act as Certificate Officer, Birbhum. There can be no doubt that this peculiar expression was used in an attempt to bring it within the proviso to Rule 24(1) as of the transfer was at the written request of the respondent. There is, however, no such request and none has been disclosed in the affidavits. It is not also the case of the appellant that there is any question of inefficiency or misbehaviour.
9. The learned Judge in the Court below has come to the conclusion that the post to which the respondent had been transferred, does not carry the same pay as the post of the Registrar, Rent Controller's office. Calcutta, and I will presently refer to this particular point. There are, however, other provisions in the rules which have to be considered. The first rule to be considered is Rule 2. It is important to consider the contents, and the rule is set out below:
2. Subject to the provisions of the Constitution of India and except where to is otherwise expressed or implied, these flues apply to all members of services and holders of posts whose conditions of service the Government of West Bengal are competent to prescribe. Subject as aforesaid, they also apply to-
(i) any person for whose appointment and conditions of employment special provision is made by or under any law for the time being in force;
(ii) any person in respect of whose service, pay and allowances or pension or any of them special provision has been made by an agreement made with him, in respect of any matter nor covered by the provisions of such law or agreement.
10. It will thus appear that the rules are subject to the provisions of the Constitution and are also subject to the conditions of employment, whether express or implied. It is this rule such explains why Rule 24(1) is inapplicable to the facts of the present case. Generally speaking, Government posts are transferable posts, but there may be expositions both express or implied. It is impossible to lay sown as a general proposition that under all circumstances persons bolding any Government post can be transferred to another without restriction. It may be that a particular purpose. It may be that a person has been appointed to a particular post because he is suitable for holding that post, and no other. The holder of a post may require a certain kind of technical knowledge, and to say that he can be transferred to another post for which he is not qualified, would be absurd. For example, supposing a person fills the post of a police officer ; can he be transferred as a bus-conductor under the State Government in its transport department? The answer is obviously in the negative. As I have already stated, the post of the Registrar in the Rent Controller's office. Calcutta, has been created by statute, namely, the West Bingal Permises Tenancy Act, 1956. According to the rules made under Article 309, it can be filled up in two ways. One is by the holder of a transferable post, namely, the cadre post of W.B.J.C.S. In such a case the appointment is subject to 'further order.' Where a person in a cadre post is appointed, it is to be implied that he can be transferred, but under the second method of recruitment. Namely, from the post of a Deputy Registrar, the only qualification required is that a person should be holding the post of the Deputy Registrar for three years. Therefore, it is implied that the person appointed as a Registrar is acquainted with the kind of work required in the Registrar's office and no other qualification is necessary. When a person not belonging to any cadre post is appointed 'permanently' to the post of a registrar under such circumstances, the implication is that he will continue to hold the post of a Registrar all throughout his administrative career and it is implied that he cannot be transferred elsewhere. Upon this aspect of the matter we agree with the Allahabad decision cited above, and the findings of the Court below.
11. Next comes the question as to whether the post to which the respondent has been transferred carries the same emolument or lesser emolument than the post of a Registrar. What is stated on behalf of the appellant is that the post of the Certificate Officer. Mayurakshi revenue divisions, Birbhum, does not carry any substantive scale of pay. This brings me to a consideration of the nature of the post to which the respondent has been transferred. The post of a Certificate Officer is created under the Bengal Public Demands Recovery Act, 1918. Under Section 3(3) of the Bengal Public Demands Recovery Act. 1913, the expression 'Certificate Officer' has been defined in the following manner:
(3) 'Certificate officer's means a collector, a Sub divisional Officer, and any officer, appointed by a collector, with the sanction of the commissioner, to perform the functions of a Certificate officer under this Act.
12. Thus, the post of a Certificate Officer is one created by statute and no such post can be created or filled up except in conformity with the provisions of the said stature. From the materials disclosed in this case, we find that by memorandum dated 28 May 1963 the Governor accorded sanction to the creation of a temporary gazetted post of a Certificate Officer, having normally the rank and status of a Sub-Deputy Collector in connexion with the realization of arrears, canal revenue, in the Mayurakshi revenue divisions, Suri, in the district of Birbhum. The relevant portion of the said memorandum is important and is set out below:
The undersigned is directed by order of the Governor to say that the Governor has been pleased to accord sanction to the creation of a temporary gazetted post of a Certificate Officer, having normally the rank and status of a Sub-Deputy Collector, in Connexion with the realization of arrear canal revenues in the Mayurakshi revenue divisions at Suri in the District of Birbhum for the period up to 28 February 1965 with effect from the date of appointment of the incumbent.
The Governor has also been pleased to direct that Hirendra Nath Banerjee, permanent Registrar of the office of the Rent Controller, Calcutta, should under this order for the present, as a special case and shall draw the grade pay of the Registrar in the scale of Rs. 500-25-550-30-700 for so long as he holds the post.
13. It will be observed that the temporary post of a Certificate Officer created by the above memorandum is created by the Governor, although at the request of the Commissioner, Bardwan division, and that the respondent; is appointed to that post by the Governor. It is further ordered that although the post normally carries the scale of pay applicable to a Sub-Deputy Collector In the W.B.J.C.S. cadre, it was as a special case to bear a scale of pay which has been equated with the scale of pay of the respondent as a Registrar of the Rent Controller's office, Calcutta. It is cot disputed that the normal scale of pay and this special scale of pay so ordered, are at variance and that the former is less than the latter. Going back now to Rule 24(1), the proviso states that there cannot be a transfer to a post carrying 'lees pay than the pay of a permanent post on which the person holds a lies.' In my opinion, it refers to the normal scale of pay and not any special scale of pay that may be introduced for the time being. In my opinion, what has been done is to make an obvious attempt to get over this rule by increasing the pay-scale, only for the respondent. If this principle is allowed, then very strange consequences will ensue. An officer holding a post in which there is higher scale of pay may then be transferred to a very Junior post, and a special pay-scale made applicable to him, to get over the mischief of the proviso. That was not the intention of Rule 24(1). For example, it would then be possible to transfer the Commissioner of Police to the post of constable by saying that ho would, as a special case, draw the pay of the Commissioner of Police. What was intended was that there should be no 'demotion' and one of the transfer ways of ensuring this in to see that a transfer is not made to a past which normally bears a lassos scale of pay or less amount of pay, basing this on sue fact that normally, the higher a post is the greater is the remuneration. It is from this point of view that we hold that the post to which the respondent bas been transferred comes within the mischief of the proviso to Rule 24(1), I think it would be appropriate here to conifer the third point taken, namely, that the post of Certificate Officer, Mayurakshi revenue divisions, Birbhum, is not one which has been created in accordance with law. I have already pointed out that the post of a 'Certificate Officer' has been created by statute, namely, the Bengal Public Demands Recovery Act, 1913. I have also set out above the definition of 'Certificate officer,' as sit out therein. According to that definition a 'Certificate Officer' must be.
(1) a Collector, or
(2) a Sub divisional Officer, or
(3) an officer appointed by Collector with the sanction of the Commissioner to perform the functions of a Certificate Officer under the Bengal Public Demands Recovery Act, 1913
It is not denied that the respondent is not a Collector or a Subdivisional Officer. It was sought to be argued that he comes under the last category, namely, an officer appointed by Collector with the sanction of the commissioner to perform functions of a Certificate Officer. In my opinion, this argument is entirely without substance. As I have stated above, the temporary post was created by the order of the Governor and the respondent was appointed to that post, also by order of the Governor. I do not see any provision for the Governor creation the post of a Certificate officer, temporary of permanent. It the respondent has to come within the said category, he must be appointed by the Collector with the sanction of the Commissioner. There is no material to show that the respondent was ever appointed by the Governor, may be at the request of the Commissioner, but upon this also there is no specific material before the Court. A person may be appointed as a 'Collector' by the state Government, and thus become a Certificate Officer under the first category. That, however, has not happened in this case and we are not concerned with the provisions of the Code of Criminal Procedure upon which Sri Banerjee relies. The result is that the respondent has been asked to hold a post which does not exist in the eye of law.
14. Sri Banerjee has cited a Supreme Court decision, State of Assam v. Sristikar Dowerah : 1SCR295 . It appears however that the decision is against him. In that case, the Supreme Court considered the meaning of the expression 'appointed' in a statute. It held that the word 'appointed' is inappropriate to signify the constitution of any authority but is quite proper to signify the creation of the personnel or an already constituted authority, to exercise the powers of that authority. From this point of view, I think that the definition of the expression 'Certificate Officer' in Section 3(3) of the Bengal Public Demands Recovery Act, 1913 is quite clear. Ordinarily, a Certificate officer would the Collector or the Subdivisional Officer who are persons connected with the recovery of the revenuer, but any other officer may be appointed by the collector with the carnation of the Commissioner, not to be a Certificate Officer, but only to perform the functions of a Certificate Officer. Under the said Act, it expressly such that such an officer can be appointed by the Collector, although with the sanction of the Commissioner. Therefore, it is the Collector and the Commissioner who are concerned in such an appointment. The appointing authority has been clearly stated in the statute. Under the circumstances, no other person can appoint such an officer.
15. Sri Banerjee has cited another decision of the Supreme Court, Oriental Metal Pressing Works, Ltd. v. Bhaskar Kashinath : 3SCR329 . This also seems to be against him. It was held there that a 'transfer' is not the same as an 'appointment.' Regard being had to the Definition of the words 'certificate Officer' which in the circumstances of this case involves an appointment, I fail to see how this decision helps Sri Banerjee.
16. To sum up we hold that the post of the registrar, Rent controller's office, Calcutta, when it is held by a person who does not belong to a cadre post is non-transferable. To put it in another way, where a person is appointed 'permanently as registrar by way of promotion from the post of the Deputy Registrar, it is an implied condition of the appointment that the incumbent will hold the post of the Registrar, Rent Controller's Office, Calcutta, and no other, and as such it is not a transferable post. We also hold that the post of the Certificate Officer, Mayurakshi revenue divisions Birbhum, which the respondent was called upon to occupy after transfer, is not a post which has been validly created and in any event the appointment of the respondent to that post has not been validly effected. We hold however that on the materials placed before us, it has not been established that the impugned orders were made mala fide.
16. Before concluding, we mast mention that we tried to settle the matter, but for some reason or other the appellant has insisted on the respondent occupying the post of a Certificate Officer outside Calcutta, to which the respondent is not agreeable. Accordingly, the matter could not be settled.
17. For the reasons given above, the appeal falls and should be dismissed, but there will be no order as to costs.
18. Upon the Government undertaking to pay to the respondent, Hirendra Nath Banerjee, the sum of rupees one thousand, without prejudice to the rights and contentions of the parties, within six weeks from date, there will be a stay of operation of this order for six weeks from today.
S.A. Masud, J.
19. I agree.