Full Judgment Text
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CASE NO.:
Appeal (civil) 2697 of 2007
PETITIONER:
Tejshree Ghag etc. etc
RESPONDENT:
Prakash Parashuram Patil & Ors. etc. etc
DATE OF JUDGMENT: 17/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2697 OF 2007
[Arising out of SLP (C) No. 11276 of 2006]
S.B. Sinha, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated
22.03.2006 passed by the High Court of Bombay in various writ petitions
filed by the private respondents herein whereby and whereunder the order of
the Tribunal dated 13.03.2002 as also the order passed in the Review
Petition arising therefrom dated 14.08.2003 were set aside.
3. The said writ petitions came up for consideration by the High Court
in the following circumstances.
4. In the Education Department of the State of Maharastra there exists a
cadre of Assistant Teachers. There are 16 categories of posts in the said
cadre. Respondents were directly appointed as Assistant Deputy Education
Inspector (for short, "ADEI") pursuant to an advertisement issued by the
State of Maharashtra on 01.10.1992. Advertisements for other posts in the
same cadre were also issued, namely, for the posts of Asstt. Teacher,
Physical Education Teacher, Science Supervisor etc. pursuant whereto
appointments were made in the said post. However, no seniority list was
published for a long time. A purported seniority list was published only on
09.08.2001. Allegedly, before publishing the said final seniority list
objections were invited.
5. Respondents, as noticed hereinbefore, who were appointed as
Assistant Deputy Education Inspector, were transferred to the post of Asstt.
Project Officer/Asstt. Teacher and those who had been working as Asstt.
Teacher/Asstt. Project Officer were transferred to the posts of ADEI.
Indisputably, by reason of such orders of transfer, the respondents suffered
civil consequences as the quantum of their pay was reduced.
6. Original applications were filed by them before the Maharashtra
Administrative Tribunal, alleging :
(i) Orders for transfer on the basis of provisional seniority list was
without jurisdiction;.
(ii) Those who were holding the posts of Asstt. Teacher could not have
been transferred as ADEI as they were not qualified therefor; and
(iii) By reason of such transfers, the pay scale of the respondents would be
reduced
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7. By reason of an order dated 13.03.2002 the said original applications
were dismissed. Review applications filed thereagainst were also dismissed.
The High Court, however, in the writ petitions filed by the respondents in
terms of its judgment dated 22.03.2006 which is impugned before us upon
noticing the scales of pay payable to the different classes of employees, inter
alia, opined :
"What emerges from the above discussion is
that the post of A.D.E.I had been recognized as
distinct post under the recruitment rules. The
appointment to the said posts is both by promotion
as well as by direct recruitment. The promotion is
from the post amongst others of Assistant Masters,
A.D.E.I.s have promotional avenue to the post of
Deputy Education Inspector to which posts the
other posts in Grade III are not entitled for
consideration. The post of A.D.E.I. as set out
earlier carries higher pay scale than those other
posts. In these circumstances, the respondent
authorities could not have clubbed these posts
under a common seniority or for that matter made
the posts transferable from one to another. This
would be treating holders of dissimilar posts as
belonging to one class, which they are not. This
will also be in violation of the recruitment rules
and affecting the promotional avenue of A.D.E.I.s.
Though there is no right to promotion, there is
right to be considered. By the action of transfer,
this right of the Petitioner has been affected. This
clearly amounts to an infringement of Article 14
and 16 of the Constitution of India."
8. It was furthermore held that transfer of persons holding substantive
posts carrying lower time scale of pay would be violative of Article 14, 16
and 311 of the Constitution of India. It was stated :
"\005The order entailed loss of pay as well as loss of
seniority and postponement of future chances of
promotion. It is in that context the Apex Court
held in that case that the effect of reduction in
rank, the appellant suffered loss of pay and also
suffered loss of seniority as also postponement of
future chances of promotion to the senior scale.
On the facts, therefore, the court held that the
appellant was not reverted for administrative
reasons for unavailability of post but for different
reasons. The act of the Respondent State
therefore, in transferring the petitioner from the
higher time scale to lower time scale would attract
Article 311 of the Constitution of India. A
reduction in the rank may be by way of
punishment or it may be an innocuous thing. If the
Government servant has a right to a particular
rank, then the very reduction from that rank will
operate as a penalty, for he will then lose the
emoluments and privileges of that rank. In such
cases the test for determining whether the
reduction in such cases is or is not by way of
punishment is to find out if the order for the
reduction also visits the servant with any penal
consequences. In the instant case, the Petitioners
suffer penal consequences inasmuch as the
petitioner’s are loosing their emoluments and
privileges of the rank\005"
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9. Mr. C. Balakrishna, learned counsel appearing on behalf of the
appellants, would, inter alia, submit that the terms and conditions of service
of the employees being governed by the statutory rules, the impugned
judgment cannot be sustained. Our attention in this behalf has been drawn
to the notification dated 27.05.2005 making rules in terms of proviso to
Article 309 of Constitution of India called ’Maharashtra Education Service
Administrative Officer of Municipal School Board, Assistant Deputy
Educational Inspector, Assistant Project Officer, Assistant Teacher in Junior
Colleges of Education, Coordinator, Councellor, Extension Officer in State
Council of Educational Research and Training Pune, Lecturer in Junior
Colleges, Programme Assistant, Science Supervisor, District Science
Supervisor, Subject Assistant, Subject Expert and Technical Assistant
(Recruitment) Rules, 2005’ (Rules). It was contented that in terms of the
said rules, the respondents were not entitled to hold the posts of Assistant
Deputy Education Inspector.
10. It is not in dispute that the cadre of Maharashtra Education Service
Group ’C’ consists of 16 different categories of posts. All posts at all
material times were not treated to be equivalent at least in the matter of scale
of pay. It is stated that a decision to sanction three tier scale of pay to full
time teachers teaching in higher school was taken by the State Government.
According to it if the direction of the High Court is given effect to, the same
would violate the conditions of service of the employees concerned working
in the Education Department and only in that view of the matter 2005 Rules
have been framed.
11. Respondents herein were holders of posts on which they were
employed. The posts carried the scales of pay prescribed therefor.
12. The terms and conditions of their service, thus, unless altered
expressly, would be governed by the rules which were in existence at the
time when the impugned orders were passed. It is true that the State has the
power to alter the terms and conditions of service even with retrospective
effect by making rule framed under proviso appended to Article 309 of the
Constitution of India, but it is also well-settled that the rules so made
ordinarily should state so expressly.
13. It has been contended that 2005 are retrospective in nature or have
retroactive operation.
14. By reason of the said rules the effect of the judgment of the High
Court is not sought to be taken away. It was not given retrospective effect.
Rules framed by the State had also not brought to the notice of the High
Court.
15. The orders of transfer were passed by Authority in purported exercise
of its executive power. Executive power can be exercised only in terms of
the extant rules. It is well-settled that where executive order results in civil
consequences, principles of natural justice are required to be complied with
prior thereto. It is not a case where an order of transfer was passed by way
of change of place of employment within an organization simpliciter. An
order of transfer ordinarily should be in terms of the existing rules. Transfer
may even be incidental to the conditions of service, but thereby nobody can
be deprived of his existing right. Existence of a power and exercise thereof
are two different concepts. An Executive power in absence of any statutory
rules cannot be exercised which would result in civil or penal consequences.
Such exercise of power must, moreover, be bona fide. It cannot be done for
unauthorized purpose. An Executive order passed for unauthorized purpose
would amount to malice in law. An order of transfer cannot prejudicially
affect the status of an employee. If orders of transfer substantially affect the
status of an employee, the same would be violative of the conditions of
service and, thus, illegal. Transfers must be made to an equivalent post.
[See Ramadhar Pandey v. State of U.P. & Others (1993) Supp. (3) SCC 35
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Hussain Sasan Saheb Kaladgi v. State of Maharashtra, (1988) 4 SCC 168
and P.C. Wadhwa v. Union of India and Anr. [1964 (4) SCR 598]
16. In Vice-Chancellor, L.N. Mithila University v. Dayanand Jha (1986) 3
SCC 7, it was held :
"\005The true criterion for equivalence is the status and the
nature and responsibility of the duties attached to the two
posts. Although the two posts of Principal and Reader are
carried on the same scale of pay, the post of Principal
undoubtedly has higher duties and responsibilities. Apart
from the fact that there are certain privileges and
allowances attached to it, the Principal being the head of
the college has many statutory rights, such as: (i) He is the
ex officio member of the Senate. (ii) He has the right to be
nominated as the member of the Syndicate. (iii) As head of
the institution, he has administrative control over the
college Professors, Readers, Lecturers and other teaching
and non-teaching staff. (iv) The Principal of a constituent
college is also the ex officio member of the Academic
Council of the university. (v) He has the right to act as
Centre Superintendent in the university examinations. It is
thus evident that the High Court was right in holding that
the post of Reader could not be regarded as an equivalent
post as that of Principal in the legal sense. Maybe, when
the affairs of a college maintained by the university are
mismanaged, the Vice-Chancellor may, for administrative
reasons, transfer a Professor or Reader of any department
or college maintained by it to the post of the Principal of
such college, but the converse may not be true. While the
Professors and Readers by reason of their learning and
erudition may enjoy much greater respect in society than
the Dean or Principal of a college, it does not follow that
the post of Principal must be treated as equivalent to that
of a Reader for purposes of Section 10(14) of the Bihar
State Universities Act, 1976, as amended."
17. The orders of transfer impugned before the Tribunal in any event
could not have been passed without complying with the principles of natural
justice.
18. We are not oblivious of the decision of this Court in Prasar Bharti &
Ors. v. Amarjeet Singh & Ors. [2007 (2) SCALE 486], wherein order of
transfers, if not otherwise arbitrary and irrational and thus violative of
Article 14 of the Constitution of India, was upheld.
19. In this case we are not concerned with enforcement of the Rules.
They were brought in force at a latter stage. It is for the State to apply the
provisions of the said rules only if any occasion arises therefor but keeping
in view the fact that the said rules have not been given a retrospective effect,
the impugned orders cannot be supported by reason thereof or otherwise.
20. We, therefore, do not find any merit in this appeal. It is accordingly
dismissed with costs. Counsel’s fee assessed at Rs. 10,000/-.