Allahabad High Court
Mohd. Mustaqueem vs State Of U.P. And Others on 9 January, 2023
Bench: Rajesh Bindal, Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD
Chief Justice's Court
Serial No. 3016
HIGH COURT OF JUDICATURE AT ALLAHABAD
***
Pronounced on: January 9, 2023
1
WRIT - A No. - 10004 of 2021
Mohd. Mustaqueem
............ Petitioner
v/s
State of U.P. and others
........ Respondents
With
2
WRIT - A No. - 10365 of 2021
Hilal Uddin Ahmad
............ Petitioner
v/s
State of U.P. and others
........ Respondents
With
3
WRIT - A No. - 11430 of 2021
Mohammad Sajid Ansari
............ Petitioner
v/s
State of U.P. and others
........ Respondents
With
4
WRIT - A No. - 11378 of 2022
Abaidullah Shah
............ Petitioner
v/s
State of U.P. and others
........ Respondents
With
5
SPECIAL APPEAL DEFECTIVE No. - 97 of 2022
(Arising out of Writ-A No. 11560 of 2021)
Mohd. Khalil Ansari
............ Appellant
v/s
State of U.P. and others
........ Respondents
6
SPECIAL APPEAL No. - 52 of 2022
(Arising out of Writ-A No. 10088 of 2021)
Jahid Mohammad
............ Appellant
v/s
State of U.P. and others
........ Respondents
With
7
SPECIAL APPEAL No. - 522 of 2022
(Arising out of Contempt Application (Civil) No. 1452 of 2022)
State of U.P. and others
............ Appellants
v/s
Mohd. Mustaqueem
........ Respondent
With
8
SPECIAL APPEAL No. - 523 of 2022
(Arising out of Contempt Application (Civil) No. 1453 of 2022)
State of U.P. and others
............ Appellants
v/s
Hilal Uddin Ahmad
........ Respondent
Present :
Mr. Sanjay Kumar Pundir, Advocate
...... for the Petitioner in Writ-A Nos. 10004, 10365, 11430 of 2021, and
for the Respondent in Special Appeal Nos. 522 & 523 of 2022
Mr. Anitesh Dwivedi and Mr. Amit Kumar, Advocates
...... for the Appellant in Special Appeal (D) No. 97 of 2022
Mr. Mansoor Ahmad, Advocate
...... for the Appellant in Special Appeal No. 52 of 2022
Mr. M.C. Chaturvedi, Additional Advocate General with
Mr. Ramanand Pandey and Mr. Ankit Gaur, Standing Counsel
...... for the Respondents in Writ-A Nos. 10004, 10365, 11430 of 2021, 11378 of 2022 and in Special Appeal (D) No. 97 of 2022, Special No. 52 of 2022, and
for the Appellants in Special Appeal Nos. 522 and 523 of 2022
CORAM :
HON'BLE RAJESH BINDAL, CHIEF JUSTICE
HON'BLE J.J. MUNIR, JUDGE
ORDER
1. This order will answer the question referred to us by the learned Single Judge in Writ-A Nos. 11430 of 2021, 10004 of 2021 and 10365 of 2021 vide order dated October 26, 2021. In Writ-A No. 11378 of 2022, the same question arises as that in the above writ petitions, which the learned Single Judge has adjourned awaiting our answer vide order dated August 4, 2022. The answer to the question in the three writ petitions, first mentioned, would also serve the purpose of Writ-A No. 11378 of 2022. After answering the question posited to us by the learned Single Judge, the writ petitions would have been placed on board before the learned Single Judge, holding determination over writ petitions of this nature along with our answer. But, what we find is that there are also under challenge before us judgments of the two learned Single Judges of this Court deciding the same issue, with reference to which the question has been referred to us in the three writ petitions, already mentioned. A challenge to the judgments of the learned Single Judge in two writ petitions has been laid by the unsuccessful writ petitioners vide Special Appeal No. 52 of 2022 and Special Appeal Defective No. 97 of 2022. Since we would be required to decide those writ petitions finally, the result whereof would depend upon the answer to the question referred to us in the writ petitions by the learned Single Judge, we are of opinion that no useful purpose would be served by sending our answer to the learned Single Judge, pursuant to the order of reference in the three writ petitions. It would only entail avoidable wastage of time and resource.
2. We, therefore, propose to dispose of writ petitions as well by this judgment, in accordance with our answer to the question referred. Special Appeal Nos. 522 of 2022 and 523 of 2022 arise out of orders of the learned Single Judge proposing to frame charges for violation of the orders passed by the Single Judge on the writ side. Those appeals too would be disposed of recording our reasons by this common judgment and order.
3. Since common questions of fact and law are involved in all the four writ petitions and the four special appeals, we proceed to notice relevant facts and the essence of lis between parties giving rise to all these matters from the records of Writ-A No. 10004 of 2021. This course of action has been adopted because parties have copiously exchanged affidavits in the said petition. Accordingly, Writ-A No.10004 of 2021, which has indeed been heard as the leading case, shall be treated as such. Nevertheless, in order to appreciate the individual facts leading to the writ petitions and the appeals, arising out of judgments of the learned Single Judges on the writ side and in the exercise of contempt jurisdiction, a summary of the nature of proceedings involved in each cause, the grievance and the relief sought are being shown in tabular form:
Sr. No. Case Details Arises out of 1 Writ-A No. 10004 of 2021 Transfer order dated 15.07.2021 passed by the Director (Administration), Medical & Health Services, U.P. at Lucknow 2 Writ-A No. 10365 of 2021 Transfer order dated 15.07.2021 passed by the Director (Administration), Medical & Health Services, U.P. at Lucknow 3 Writ-A No. 11430 of 2021 Transfer order dated 15.07.2021 passed by the Director (Administration), Medical & Health Services, U.P. at Lucknow 4 Writ-A No. 11378 of 2022 Transfer order dated 28.06.2022 passed by the Additional Director of Education (Basic), U.P. Prayagraj and the relieving order dated 25.07.2022 passed by the District Basic Education Officer, Basti 5 Special Appeal (D) No. 97 of 2022 Writ-A No. 11560 of 2021 filed against the transfer order dated 15.07.2021 passed by the Director (Administration), Medical & Health Services, U.P. at Lucknow 6 Special Appeal No. 52 of 2022 Writ-A No. 10088 of 2021 filed against the transfer order dated 15.07.2021 passed by the Director (Administration), Medical & Health Services, U.P. at Lucknow 7 Special Appeal No. 522 of 2022 Contempt Application (Civil) No. 1452 of 2022 filed for non-compliance of orders dated 07.09.2021, 14.09.2021 and 08.10.2021 passed in Writ-A No. 10004 of 2021, which has been filed against the transfer order dated 15.07.2021 passed by the Director (Administration), Medical & Health Services, U.P. at Lucknow 8 Special Appeal No. 523 of 2022 Contempt Application (Civil) No. 1453 of 2022 filed for non-compliance of orders dated 18.08.2021, 14.09.2021 and 08.10.2021 passed in Writ-A No. 10365 of 2021, which has been filed against the transfer order dated 15.07.2021 passed by the Director (Administration), Medical & Health Services, U.P. at Lucknow The Question Referred
4. In the leading case and in connected Writ-A Nos. 10365 of 2021, 11430 of 2021 and 11378 of 2022, by an order recorded in Writ-A No. 11430 of 2021, the following question of law has been referred to us by the learned Single Judge:
"Whether the post of Urdu Translator-cum-Assistant Clerk is a District Level Cadre Post and, therefore, its incumbent can not be transferred out side the District?"
Submissions on behalf of the petitioner
5. The petitioner is an Urdu Translator-cum-Junior Clerk posted in the office of Chief Medical Officer, Muzaffar Nagar. Vide the order impugned dated July 15, 2021 passed by the Director (Administration), Medical and Health Services, U.P., Lucknow, the petitioner was transferred from the office of the Chief Medical Officer, Muzaffar Nagar to the office of the Chief Medical Officer, Shahjahanpur. The order dated July 15, 2021 (Annexure No. 1) to the writ petition, orders transfer of various employees, such as Store Keepers, Stenographers, Urdu Translators-cum-Junior Clerks, from one district to another. The total number of employees transferred by the said order were 984. The petitioner's name figures at serial No. 980 of the impugned order dated July 15, 2021.
6. The short case of the petitioner is that he holds a District Level Cadre Post and, therefore, cannot be transferred outside the district, where he has been selected and appointed. The posts of Urdu Translators-cum-Junior Clerks were created by Government Order No. 80सीएम/47-का-4-94-15-10-1994 dated August 20, 1994, issued in the name of the Governor by a Secretary to the State Government. Service rules were made by the Governor for these Urdu Translators under the proviso to Article 309 of the Constitution, known as The Uttar Pradesh Urdu Translator-cum-Junior Clerk Service Rules, 1994 (for short, 'the Rules of 1994'). The petitioner has drawn the attention of the Court to the Government Order dated August 20, 1994, which created a total of 5061 posts of Urdu Translators-cum-Junior Clerks at three levels i.e. the State Headquarters, the Commissionerate and the District Headquarters. Para No. 4 of the Government Order indicates that the appointing authority for the newly created post of Urdu Translators shall be the same at the relevant level as that for a Junior Clerk. Para No. 5 of the Government Order shows that for appointments made at the State Headquarters, the appointing authority would be the Secretary to the Government in the Department of Personnel. The appointments at the level of the Commissionerate would be made by the Commissioner as the appointing authority, and at the level of District Headquarters, by the District Magistrate.
7. Along with the Government Order, there are lists, appended as Annexures I, II, III and IV, describing the Head of the Department/ Head of Office together with their Establishment, where posts of Urdu Translators were sanctioned. At the State Headquarters, the Establishments along with Head of the Department/ Office are detailed in a list carried in Annexures I and II to the Government Order. Likewise, at the Commissionerate, the Establishments, where posts of Urdu Translators have been created, have been detailed in Annexure III to the Government Order. In Annexure IV to the Government Order, the Establishments at District Level, where posts of Urdu Translators were created, have been mentioned. At the District Headquarters, there is a list of 37 such Establishments and offices, besides the Collector's office, the Tehsil, the Block and each Police Station. It is one or the other Establishment or office detailed in the three lists appended to the Government Order that an Urdu Translator-cum-Junior Clerk can be appointed. After creation of posts of Urdu Translators-cum-Junior Clerks by the Government Order dated August 20, 1994, the Governor made the Rules of 1994, that were published in the Official Gazette on September 9, 1994.
8. It is the petitioner's case that an Advertisement No. 309 dated September 25, 1994 was issued by the District Magistrate, Muzaffar Nagar inviting applications from eligible persons for appointment to posts of Urdu Translator-cum-Junior Clerk with the number of posts being specified as 79. The petitioner applied in response to the said Advertisement and appeared in the written examination held for the purpose. He was selected by the Selection Committee headed by the District Magistrate, Muzaffar Nagar as envisaged under Rule 17 of the Rules of 1994. The petitioner being found fit for selection, a Memo No. 487/ Samanya Sahayak, dated April 3, 1995 was issued by the office of the District Magistrate, which the petitioner says gave him appointment on the post of an Urdu Translator-cum-Junior Clerk in the office of the Chief Medical Officer, Muzaffar Nagar. The said appointment order, according to the petitioner, directed him to join services at the office of the Chief Medical Officer, Muzaffar Nagar.
9. It is argued on behalf of the petitioner that the procedure prescribed for filling up vacancies under the Rules of 1994 shows that the post held by the petitioner is a Group-C post, of which the District Magistrate, where the petitioner was selected, is the appointing authority. The service to which the petitioner has been appointed is a District Level Cadre and members of the said service, according to the strength of the Cadre, are to be allocated to different offices and Establishments mentioned in Annexure 3 to the Government Order dated August 20, 1994. The petitioner, therefore, cannot be transferred outside the district.
10. The learned Counsel for the petitioner has emphasized on the definition of the term 'service' defined under Clause (f) of Rule 5 of the Rules of 1994, which says that "service" means the service of Urdu Translator-cum-Junior Clerk in a Government Department or office, constituted under relevant service rules or executive instructions, as the case may be. The submission of the learned Counsel is that by appointment to a particular Government Department or office, the Urdu Translators do not become part of the Cadre of Junior Clerks in that office. They do not get the benefit of promotion under the relevant service rules applicable to the Department or office, to which they are appointed as Urdu Translators-cum-Junior Clerks. It is emphasized that the identity of the service of Urdu Translators-cum-Junior Clerks is distinct and different from the other Junior Clerks, who may be part of that Cadre in a Government Department or office. The service of the petitioner is that of Urdu Translators-cum-Junior Clerk, but not a Junior Clerk in the office or the Government Department, where he/ she has been appointed. This, he submits, is evident from the definition of service, found in Clause (f) of Rule 5 of the Rules of 1994. It is also emphasized that Rule 6 shows that the strength of service, that is to say, of Urdu Translators-cum-Junior Clerks in each Department or office, has to be determined by the State Government from time to time under the relevant service rules or executive instructions. This is a clear indicator, according to the learned Counsel for the petitioner, that the petitioner or for that matter any Urdu Translator-cum-Junior Clerk is very different from a Junior Clerk in the regular Cadre in a Government Department or office. The submission, therefore, is that the petitioner's appointment being one made to a District Level Cadre post by the District Magistrate, Muzaffar Nagar, he cannot be transferred to any other district. He may be transferred to any Establishment of the Chief Medical Officer within the district. In support of his contention, the learned Counsel for the petitioner has placed reliance on the decision of a learned Single Judge in Trabuddin and others v. Chief Secretary, U.P. Shasan Secretariat and others 2014 (11) ADJ 318, where this Court, after noticing the Rules of 1994 and the Government Order dated August 20, 1994, held as under:
"17. With respect to transferability of post, it is not disputed that Rules, 1994 do not contemplate any such thing. State Government has clarified vide order dated 25.8.2006 that neither the posts nor the personnels, working as Urdu Translators-cum-Junior Clerk, are transferable or should normally be transferred. In view of this specific stand taken by respondent State of U.P., I do not find as to how Police Headquarters can take upon itself the task of laying down conditions of service or policy decision with respect to service matters of petitioners, contrary to the decision taken by State Government, who is principal body having legislative power to lay down conditions of service of these personnel. A transfer policy with respect to Urdu Translators-cum-Junior Clerk, no doubt is within the realm of State Government. If it decides to make it non transferable, U.P. Police Headquarters, in my view, does not possess any power and none has been shown by respondents-learned Standing Counsel whereby it can take a contrary policy decision. The decision taken in respect of Police personnel, is by virtue of power specifically conferred under Act, 1861 and rules and regulations framed thereunder but no such power has been conferred with respect to civilian staffs and unless such power is vested with them (U.P. Police Headquarter), I do not find that such a policy decision can be taken by it (Police Headquarters) in respect of transfer of persons working as Urdu Translators-cum-Junior Clerk. The Police Headquarters' circular dated 28.7.1997 is clearly unauthorised, without jurisdiction and illegal, particularly when State Government has already made it clear that posts and personnels making as Urdu Translator cum Junior Clerk are not transferable."
11. The learned Counsel for the petitioner has further placed reliance upon a decision of the Uttarakhand High Court in Ramesh Chandra Joshi & another v. Iqbal Ahmad & others, 2016 SCC OnLine Utt 1943. Attention of the Court has been drawn to Paragraph Nos. 26 and 27, which read as under:
"26. Now, we may notice some of the Government Orders, which came to be passed. Before the 1994 Rules were framed, order dated 20.08.1994 was passed. Reliance is placed on the said order by the writ petitioners and the intervener. We have already extracted the said order. The order was passed at a time when the Rules were not enacted. The order, apparently, came to be passed in the context of the decision of the Government to link Urdu with the livelihood and to create a post of Urdu Translator in the offices at the district level inter alia as per the details, which were mentioned. Number of posts were created. Further one post was created in each of the offices mentioned in the enclosed list. In short, it contemplated appointments being made in vacant posts of Junior Clerks by converting the same to the posts of Urdu Translator-cum-Junior Clerk in the mentioned pay-scale. This is seized upon by the writ petitioners and the intervener to contend that the persons were appointed as Urdu Translator-cum-Junior Clerk in the vacant posts of Junior Clerk and, from this, an inference is sought to be drawn that they were inseparably interconnected. It is true that a question may arise that, when the vacant post of Junior Clerk is not filled-up by appointing a Junior Clerk but by appointing an Urdu Translator-cum-Junior Clerk, who would discharge the functions of the Junior Clerk. Could it not be said that the Urdu Translator-cum-Junior Clerk would be expected to carry out the work of Junior Clerk besides, of course, doing translation work and, therefore, he should be treated as a Junior Clerk? At first blush, the argument appears to be impressive; but, there is another way of looking at it. What was intended by the Government having regard to its declared intention to provide for Urdu Translators, it was sought to be done by converting the vacant posts of Junior Clerk and by appointing Urdu Translators-cum-Junior Clerks, as provided in the enclosed list, in each of the offices. This could be treated as a method of making the appointments. That is to say, instead of creating new posts for Urdu Translators-cum-Junior Clerks, Government decided to convert the vacant posts and to appoint them as Urdu Translators-cum-Junior Clerks. Had it been the intention of the Government that the post of Urdu Translator-cum-Junior Clerk would be treated as Junior Clerk, nothing stood in the way of the Government amending the 1980 Rules and providing for the post of Urdu Translator-cum-Junior Clerk also within its ambit. This not being done, it let the state of the law remain unamended, under which law, only the Junior Clerks and other ministerial staff could be considered for promotion to the post of Senior Clerk. The mere fact that the vacancies held by Junior Clerks were made use of for appointing Urdu Translators-cum-Junior Clerks cannot be the basis for treating them as part of the same cadre. Equally bereft of merit is the argument based on clause (2) of the order dated 20.08.1994, which also contemplates appointment of Urdu Translator-cum-Junior Clerk being made to the first vacancy, where the post of Junior Clerk is not vacant. It is also contemplated, no doubt, that the appointing authority for the post of Junior Clerk will be the appointing authority for the post of Urdu Translator-cum-Junior Clerk; but, we have already noticed that, even in the Rules, the same provision has been incorporated and it may not advance the case of the writ petitioners and the intervener. We find from Clause (7) of the said order that the rules to be enforced regarding conditions of service/selection procedure for the posts of Urdu Translator-cum-Junior Clerk was to be issued separately. It is, thereafter, that the 1994 Rules, which we have already noticed, came into being.
27. The next order, which is produced, is order dated 30.09.1995. It is an office order. It indicates certain candidates being selected and being appointed to the posts of Urdu Translator-cum-Junior Clerk and the same being filled-up, apparently, in terms of order dated 20.08.1994."
12. Reliance has next been placed on behalf of the petitioner on the decision of the Supreme Court in Som Raj and others v. State of Haryana and others, (1990) 2 SCC 653. Attention of this Court has been drawn to Paragraph No. 5, which reads as under:
"6. A resume of these rules clearly shows that for the appointment of all the posts including Junior Clerks in the Head Office, the appointing authority is the Director. All appointments to the post of Junior Clerks other than Head Office shall be by the concerned Head Office. As per the appendix, the staffing pattern in the office of the Director of Agriculture and the Subordinate Offices is entirely different. The only common element is the Senior Clerks. The seniority is to be maintained on the basis of the substantive appointment to the respective cadres. The seniority of the members of the service shall, in each class of appointment shown in the appendix be determined by the date of their substantive appointments or promotion or otherwise to permanent vacancies in such a class. The method of appointment has been adumbrated under Rule 7(1)(I) to (L) by promotion from amongst the persons working in the respective subordinate posts in the respective offices in the first instance, or by selection from amongst persons working in the government offices including Subordinate Offices and in some cases by the direct recruitment. Thereby it is clear that for filling up the vacancies arising in the post of Superintendent, Assistants and Senior Clerks, the persons working in the Subordinate Offices or the government offices are the feeder channels, or in some case by direct recruitment. Sub-rule (2) of Rule 7 makes the matter clear that they have got right to be considered, but it is strictly by selection and they have no claim to the appointment as of right. It is open to the government to constitute different cadres in any particular service as it may choose according to its administrative convenience and expediency. The office of the Director is the apex office obviously to control and oversee the functioning of the Subordinate Offices and the other allied departments under his control monitoring the implementation of the government's agricultural programmes. It may not be necessary to maintain a common cadre of the employees of the Directorate and the Subordinate Offices. Each cadre is a separate service or a part of the service sanctioned for administrative expediency. Therefore, each may be a separate unit and the posts allocated to the cadre may be permanent or temporary. It is seen from the appendix that in the office of the Directorate there is one Superintendent, three Head Assistants, four Assistants, two Stenographers, seven Senior Clerks, and twelve Junior Clerks. In the Subordinate Offices, there is one Superintendent, seven Head Clerks and two Senior Clerks. This is obviously on the basis of administrative need. No doubt the office of the Directorate and the Subordinate Offices have been compendiously shown in Section 6 of the Appendix. That does not by itself mean that office of the Directorate and Subordinate Offices are treated under the Rules as one unit or at par, as contended for by Shri P.P. Rao. As pointed out in the beginning, the Director had committed some irregularities at the time of initial appointments in the year 1973 when he picked up five persons out of the select list of the candidates and appointed them in the Directorate of Haryana Government deviating from the order of merit prepared by the Board. They were selected at a common selection by the Recruitment Board along with other candidates who stood higher in the order of merit prepared by the Selection Board. But this was done in the year 1973 and the appointments have not been challenged till date of filing of the writ petition in 1979. Even in the writ petition no challenge was made. This is pressed into service only to show that the appellants are similarly situated with them. After the appointments were made and the candidates joined in the respective posts for consideration for promotion the Rules occupy the field and the claims are to be considered according to Rule 7. Therefore, though we may not agree with the learned counsel for the State that the Director had absolute discretion to pick and choose arbitrarily and make appointment of the posts, yet undoubtedly, he had power to appoint them. Normally the order of appointment would be in the order of merit of candidates from the list and must be in accordance with rules. His exercise of power should not be arbitrary. The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. The Rules provide the guidance for exercise of the discretion in making appointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection. The appointing authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority. We refrain from going into the correctness of the choice made by the Director due to laches in not assailing the correctness of the appointment for well over six years. The validity of the rules have not been questioned. The only question is, as stated earlier, whether the employees working in the Head Office and the Subordinate Offices are entitled to common seniority. The Rules themselves made a distinction between the persons appointed in the Directorate and the Subordinate Offices as separate cadres and the subordinate cadre in some cases is the feeder cadre for promotion to the post in the Head Office. In this view, by no stretch of imagination, the appellants can be considered to be equally placed for treating them at par with the Directorate employees for being treated as being in a common cadre. There is reasonable nexus to differentiate the two cadres. Therefore, the classification cannot be said to be arbitrary violating Articles 14 and 16 of the Constitution."
13. It is submitted by the learned Counsel for the petitioner on the strength of the aforesaid decision in Som Raj (supra) that though Junior Clerks in that case for posts in the Head Office, that is, the Directorate of Agriculture and those in the subordinate offices of the Directorate were selected through a common selection by the Recruitment Board along with other candidates, but those appointed to the Head Office of the Directorate were held not to constitute a single cadre with the Clerks appointed to the subordinate offices. It was held that in the same service, it is open to the Government to constitute different cadres as it may choose according to its administrative convenience and expedience. It is urged on the basis of the said holding that here the definition of service to be found in the Rules of 1994 is with reference to each Government Department or office and where the Establishment to which an Urdu Translator has been appointed, is a District Level Establishment or office, the post held by the Urdu Translator is a District Level Cadre Post notwithstanding that the service of Urdu Translators-cum-Junior Clerks, according to Rule 6 of the Rules of 1994, in each Government Department or office under the relevant service rules applicable to that Department or office, may be a State service permitting transfer from one district to another for other incumbents governed by the service rules in that Department or office. The Urdu Translators, according to the learned Counsel for the petitioner, are a distinct or different class and they are not entitled to many other benefits such as promotions, etc., as the other Junior Clerks in the regular Cadre of particular Government Departments or offices. It is in that context that the decision of the Division Bench of the Uttarakhand High Court in Ramesh Chandra Joshi (supra) has been emphasized.
Submissions on behalf of the respondents
14. Mr. M.C. Chaturvedi, learned Additional Advocate General assisted by Mr. Ramanand Pandey and Mr. Ankit Gaur, learned Standing Counsel appearing on behalf of the State, have submitted that the petitioner's case that he is a member of a District Level Cadre Post under the Rules of 1994, is based on a complete misreading and misunderstanding of the Rules of 1994. According to the learned Additional Advocate General, the District Magistrate, under the Rules of 1994, is not at all the petitioner's appointing authority. He is only the Chairman of the Selection Committee, comprising five Members, including the District Magistrate envisaged under Rule 17. It is argued that the appointing authority would be an authority in one Government Department or the other or one office or the other, where an Urdu Translator is appointed. The Government Departments and offices are varied and different under the Government Order dated August 20, 1994, whereby specified number of posts have been created for Government Departments and offices at the Headquarters, the Divisional Headquarters of the Commissionerate and the District Level. To each of such posts, according to the learned Additional Advocate General, selections have to be made by the Statutory Selection Committee constituted under Rule 17 of the Rules of 1994. Post selection by the Statutory Selection Committee, the appointing authority in a particular Government Department or office would offer appointment to the selected candidate and issue an appointment letter to him. The candidate once appointed in a particular Government Department or office as an Urdu Translator-cum-Junior Clerk would be governed by the service rules applicable to the Cadre of Junior Clerks there. In the submission of Mr. Chaturvedi, if the Government Department or office happens to be governed by Rules, where employees holding a Group-C post in the Cadre of a Junior Clerk are transferable, an Urdu Translator-cum-Junior Clerk appointed to such a Government Department or office, would be liable to be transferred like any other holder of a Group-C post, or more particularly, a Junior Clerk.
15. In the present case, the learned Additional Advocate General has submitted that the petitioner was appointed as an Urdu Translator-cum-Junior Clerk vide order dated May 31, 1995 issued by the Director (Administration) in the office of the Director General, Medical Health and Family Welfare, Government of U.P. at Lucknow, acting on the recommendation of the Statutory Selection Committee as an Urdu Translator-cum-Junior Clerk in the office of the Chief Medical Officer, Muzaffar Nagar. A copy of the said appointment letter is annexed to the Supplementary Affidavit-II dated September 28, 2021, filed on behalf of respondent No. 3. It is submitted by the Additional Advocate General that this appointment letter was deliberately not brought on record by the petitioner in the writ petition as it would indicate that the petitioner's appointing authority is the Director (Administration), Medical and Health Services, U.P., Lucknow and not the District Magistrate, Muzaffar Nagar. It is urged that the petitioner's appointment as an Urdu Translator-cum-Junior Clerk is governed by Rule 3-Ka of the U.P. Medical Health and Family Welfare Department (Subordinate Office) Clerical Cadre Service Rules, 1994 (for short, 'the Medical Service Rules, 1994) read with Rule 5(a) of the Rules of 1994.
16. A third Supplementary Affidavit dated October 4, 2021 has also been filed on behalf of respondent No. 3, bringing on record a xerox copy of the petitioner's service-book, which shows that vide order dated August 18, 2008 passed by the Director General, Medical and Health Services, U.P., Lucknow, the petitioner has been promoted to the post of Urdu Translator-cum-Senior Clerk, with his post, in the pay scale of 4000-100-8000. It is urged on the basis of service rules applicable to the petitioner that he is an Urdu Translator-cum-Senior Clerk in the Establishment of the Director General, Medical and Health Services, U.P., Lucknow. His appointing authority is the Director (Administration), Medical and Health Services, U.P., Lucknow. The petitioner's service, which is a clerical cadre post governed by Medical Service Rules, 1994, cannot be said to be a District Level Cadre Post.
17. In support of his contention, the learned Additional Advocate General appearing for the respondents has placed reliance upon an unreported decision of the learned Single Judge in Akeel Ahmad v. State of U.P. and others, Writ - A No. 14945 of 2018, decided on July 17, 2018, where it has been held:
"6. Petitioner in the present case appears to be working in the office concerned for the last more than 10 years. His appointment is to the post of Urdu Translator-cum-Junior Clerk and he has been transferred against a specific post of Urdu Translator-cum-Junior Clerk existing in the same department i.e. the Transport Department of the State.
7. The order of transfer has been passed after obtaining approval from the State Government, which otherwise has jurisdiction in terms of Rules of 1994. There is nothing in the rules, which may prohibit a transfer of Urdu Translator-cum-Junior Clerk to another post existing in the cadre itself. The petitioner cannot insist that he has to be posted in the same region where he was initially appointed. Argument advanced in that regard is not sustainable in terms of the specific provisions of the rules itself. It is otherwise settled that transfer is an exigency of service, and unless it is shown to be violative of any provisions of the statutory rules or is otherwise found to be mala fide, no interference with it is called for. Challenge laid to the order of transfer, therefore, fails."
The Rules applicable
18. It would be gainful to refer to Rules governing the conditions of service of the petitioner. The foremost to be noticed are the Rules of 1994. The Rules aforesaid, as already said, have been made by the Governor in exercise of powers under the proviso to Article 309 of the Constitution. Clauses (a), (e) and (f) of Rule 5 of the Rules of 1994 are relevant and quoted below:
"5. In these rules, unless there is anything repugnant in the subject or context-
(a) "appointing authority" means an authority empowered to make appointment to a post of Junior clerk in a Government Department or office, under relevant service rules or executive instructions, as the case may be;
(b)-(d) x x x x
(e) "member of the service" means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service;
(f) "service" means the service of Urdu Translator-cum-Junior Clerk in a Government Department or office, constituted under relevant service rules or executive instructions, as the case may be;"
(emphasis by Court)
19. Again, under Part-II of the Rules of 1994 vide Rule 6, the cadre of service or the strength of service has been defined as follows:
"6. The strength of the Service in each Government Department or office shall be such as may be determined by the Government from time to time under the relevant service rules or executive instructions, as the case may be."
(emphasis by Court)
20. It is further relevant to refer Rules 16, 17(1) and 18 of the Rules of 1994, which read as follows:
"16. The appointing authority shall determine and intimate to the District Magistrate the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 8. The District Magistrate shall notify the vacancies to the Employment Exchange. He shall also invite applications directly from the persons who have their names registered with the Employment Exchange. For this purpose the District Magistrate shall issue an advertisement in daily newspapers of Hindi and Urdu language besides pasting the notice for the same on the notice board.
17. (1) For the purpose of recruitment, there shall be constituted a Selection Committee comprising-
(i) The District Magistrate Chairman
(ii) An officer belonging to the Scheduled Castes or Member Scheduled Tribes nominated by the District Magistrate if the District Magistrate does not belong to Scheduled Caste or Scheduled tribe. If the District Magistrate belongs to the Scheduled Castes or Scheduled Tribes an officer other than belonging to Scheduled Castes or Schedule Tribes to be nominated by District Magistrate.
Member
(iii) two officers nominated by the District Magistrate one of Member whom shall be an officer belonging to the Minority Community and the other belonging to the other Backward Classes.
Member
(iv) An expert in Urdu Language nominated by the District Member Member Magistrate.
Member (2) x x x x (3) x x x x
18. The appointing authority shall make appointment by requisitioning the Appointment names of candidates from the District Magistrate who shall provide the names of candidates in order in which they stand in the list prepared under Rule 17."
21. The relevant part of the Medical Service Rules, 1994 are quoted below:
"(3) जब तक विषय या संदर्भ में कोई प्रतिकूल बात न हो इस नियमावली में:
(क) नियुक्त प्राधिकारी का तात्पर्य निदेशक, प्रशासन, चिकित्सा, स्वास्थ्य एवं परिवार कल्याण विभाग, उत्तर प्रदेश से है, (ख) - (च) x x x x (छ) "सेवा का सदस्य" का तात्पर्य सेवा के संवर्ग मे किसी पद पर इस नियमावली के प्रारम्भ होने के पूर्व प्रवृत्त नियमों या आदेशों के अधीन मौलिक रूप से नियुक्त व्यक्ति से है, (ज) 'सेवा' का तात्पर्य उत्तर प्रदेश चिकित्सा स्वास्थ्य एवं परिवार कल्याण विभाग (अधीनस्थ कार्यालय) लिपिक वर्गीय सेवा से है,"
22. It must be mentioned here that the petitioner of Writ-A No. 11378 of 2022 after selection as an Urdu Translator-cum-Junior Clerk in accordance with the Rules of 1994 has been appointed to the office of the District Basic Education Officer, Basti. A different set of rules would be applicable to him, to which allusion would be made later in this judgment.
Findings
23. Upon hearing learned Counsel for parties and carefully perusing the Rules of 1994 and the Medical Service Rules, 1994, in our opinion we need to look into the general scheme of the Rules of 1994 as well as the Medical Service Rules, 1994. The consideration of these two Rules would suffice, so far as all the Writ Petitions and the Special Sppeals being disposed of by this judgment are concerned, except Writ-A No. 11378 of 2022. In case of the writ petition last mentioned, the Rules of 1994 would have to be considered together with the Uttar Pradesh Adhinasth Shiksha Lipik Varg Sewa Niyamawali, 1985 (for short, 'the Rules of 1985').
24. A perusal of the Rules of 1994 shows that these have brought into existence a new class of employees called Urdu Translators-cum-Junior Clerks. The posts have been created under the Government Order dated August 20, 1994. Shortly thereafter, the Rules of 1994 were made by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution. The object of enacting the Rules is regulation of recruitment and conditions of service of persons appointed to the Uttar Pradesh Urdu Translators-cum-Junior Clerks Service. Thus, these Rules do not constitute the service, but regulate recruitment and conditions of service to the post of Urdu Translators.
25. The posts of Urdu Translators have been created vide Government Order dated August 20, 1994 by the State Government in the exercise of its executive powers. The number of posts sanctioned, are clearly stipulated to be a figure of 5061. The pay scale is also specified by the Government Order under reference. The creation of posts, against which an Urdu Translator would be appointed, is also given out by the Government Order. The Government Order dated August 20, 1994 specifies as its object the making of Urdu Language a medium to secure one's livelihood and refers to an earlier Government Order dated March 24, 1994 on the subject. The order then proposes to create posts of Urdu Translators-cum-Junior Clerks in the classes of offices that are eight in number, where one post each in the offices of the specified class stands created. Each of the eight classes of offices have been allocated a particular number of posts (class-wise) mentioned in the opening paragraph. There are three annexed lists of offices at the level of State Headquarters, the Commissionerate and the District Headquarters, which would each have an Urdu Translator.
26. The Government Order provides that the posts of Urdu Translators would be created in the manner that in the specified offices, where the post of a Junior Clerk in the pay-scale of 950-1500 is vacant, would be converted to that of Urdu Translator-cum-Junior Clerk in the pay-scale of 950-1500 and an incumbent appointed thereagainst. In the event a post is not available, the Government Order specifies the manner in which the appointment has to be made. In Paragraph No. 4 of the Government Order, it is stipulated that the appointing authority of the newly created posts of Urdu Translator-cum-Junior Clerk would be the same authority, who is competent to appoint Junior Clerks. The appointments are to be made at three levels of offices i.e. State Headquarters, the Commissionerate and the District Headquarters. The appointing authorities at the three levels have been indicated to be different in the Government Order. The Rules that have been enforced w.e.f. September 9, 1994, apparently do not create the posts, but override the Government Order as regards the definition of service of Urdu Translators-cum-Junior Clerks, the Rule governing their service, their appointing authority, the mode of selection and prescribe a cadre strength in each Government Department or office that may be varied and determined by the Government.
27. The Rules of 1994 regulate recruitment and conditions of service of Urdu Translators. Since the Rules are ones made in exercise of the powers under Article 309 of the Constitution, anything to the contrary in the Government Order dated August 20, 1994 would stand effaced. It is evident from a perusal of the Government Order dated August 20, 1994 that to start with posts of Urdu Translators-cum-Junior Clerks were to be created by utilizing in the specified offices, the one available post of Junior Clerk and converting it to an Urdu Translator in the same grade and scale of pay. No fresh posts of Urdu Translators had been created in the sense that the posts have not been added to the existing strength of Junior Clerks in various Departments of the Government or offices, where the posts of Urdu Translators were created, but the existing posts of Junior Clerks in various Departments and offices, wherein Urdu Translators were to be appointed, have been created by converting existing posts of Junior Clerks.
28. The origin and creation of the post of Urdu Translators-cum-Junior Clerks would show that though a new post is brought into existence by the Government Order dated August 20, 1994, it is not generically different from a Junior Clerk's post. The appendage in the designation 'cum-Junior Clerk' is no vestige of the post's origin, but shows Establishment of a specialized cadre amongst Junior Clerks, who are otherwise essentially the same as any Junior Clerk. Of course, they are to have special qualifications and knowledge in the Urdu language, which is to be employed in the translation work.
29. The Rules of 1994 have constituted the post of Urdu Translators-cum-Junior Clerks vide Rule 2 into a non-Gazetted service comprising Group-C post. The scheme of the Rules of 1994 would, however, show that beyond the description of these Urdu Translators being members of the Uttar Pradesh Urdu Translators-cum-Junior Clerks Service, they are not a centralized service, the incumbents whereof may be moved from one Government Department or office to another. Rule 5(a) defines the appointing authority to mean "the authority empowered to make appointment to a post of Junior Clerk in a Government Department or office, under relevant service rules or executive instructions. ......" Service has been defined under Rule 5(f) to mean "the service of Urdu Translator-cum-Junior Clerk in a Government Department or office, constituted under relevant service rules or executive instructions, ......". Rule 6 of the Rules of 1994 deals with the cadre and stipulates that "strength of the Service in each Government Department or office shall be such as may be determined by the Government from time to time under the relevant service rules or executive instructions, ....".
30. Likewise, Rule 16, which occurs in Part V of the Rules of 1994, provides that "the appointing authority shall determine and intimate to the District Magistrate the number of vacancies to be filled during the course of the year". The District Magistrate has to invite applications through the Employment Exchange and also through advertisement in daily newspapers of Hindi and Urdu language. A Selection Committee headed by the District Magistrate has been provided under Rule 17(1). A competitive examination is envisaged under Rule 17(2), which is a written examination with three papers, marks whereof, including the papers, are specified under sub-Rule (3) of Rule 17. The Selection Committee is entrusted with the task of securing evaluation of the answer-books through persons well versed in Hindi and Urdu Languages. The Selection Committee has further been tasked with preparing a select list of candidates in order of merit going by the aggregate of marks secured by them in the written examination. The number of candidates selected is to be larger than the posts requisitioned, but not larger than by 25%. Under Rule 18, the appointing authority is obliged to make appointment out of the names received from the District Magistrate by adhering to the order in which they stand in the list prepared under Rule 17.
31. The Medical Service Rules, 1994 have also been made by the Governor under the proviso to Article 309 of the Constitution. Part I Rule 2 of the Medical Service Rules, 1994 stipulate that all Group-C posts in the clerical cadre in Uttar Pradesh Medical Health and Family Welfare Department governed by these Rules, would be Group-C Posts. Rule 3(a) of Part I of the Medical Service Rules, 1994 defines the appointing authority as the Director (Administration), Medical Health and Family Welfare, Uttar Pradesh. Part III spells out the various cadres of employees, who are part of the service created under the Medical Service Rules, 1994. There are 11 cadres of employees, amongst whom, Junior Clerks figure under Rule 8 of Part III. There, the nomenclature given to the Junior Clerks is Junior Division Clerks. In this cadre, 85% are to be selected through direct recruitment, whereas the remainder 15% are to be promoted from amongst Class IV employees, working with the Department of Medical Health and Family Welfare, who are Matriculates.
32. Other conditions of eligibility for appointment to the service governed by the Medical Service Rules, 1994 is given out by Part IV, Rule 7 and the educational qualifications in Rule 8 of Part IV. Rule 14, that is to be found in Part V, speaks about the determination of vacancies occurring during the course of a year. It obliges the appointing authority to determine the total number of vacancies occurring during the recruitment year and also those that are required to be filled up in the Reservation Categories of SC, ST and OBC. Those of the vacancies that are to be filled up through the Commission, would be notified to them. The Commission is defined under Rule 3-Ga of the Medical Service Rules, 1994 as the Uttar Pradesh Subordinate Services Selection Commission. Rule 15 of the Rules speaks about direct recruitment. The selections are to be made by the Commission through a written examination, who would draw up a merit list based on marks secured by candidates. The number of candidates in the list drawn up by the Commission would not be more than the 25% of the vacancies. The lists, thus, drawn up by the Commission would be forwarded to the appointing authority. Rule 18 of the Medical Service Rules, 1994 provides for appointment, probation, confirmation and seniority.
33. Shorn of much detail, it is evident that direct recruitment or for that matter promotion to the post of a Junior Clerk governed by the Medical Service Rules, 1994 is to be made by the specified appointing authority, who is the Director (Administration), Medical Health and Family Welfare, Uttar Pradesh. It is, thus, evident from a perusal of the Medical Service Rules that the Uttar Pradesh Medical Health and Family Welfare Subordinate Clerical Grade is a Group-C service, whose appointing authority is the Director. It is a State Level service with subordinate offices and Establishments under the Department of Medical Health and Family Welfare spread across the State.
34. By contrast, the Rules of 1994, under which Urdu Translators-cum-Junior Clerks are appointed, define by Rule 5(a) the appointing authority as the authority empowered to make appointment to the post of Junior Clerk in a Government Department or office. Rule 5(f) of the Rules of 1994 defines the services of Urdu Translators-cum-Junior Clerks as one in a Government Department or office, constituted under the relevant service rules or executive instructions. Under Rule 6 of the Rules of 1994, the strength of service of Urdu Translators has been specified with reference to each Government Department or office, which shall be determined by the Government from time to time under the relevant service rules or executive instructions.
35. The crux of the matter, therefore, is that Urdu Translators-cum-Junior Clerks, though part of a service, called the Uttar Pradesh Urdu Translators-cum-Junior Clerks created under the Rules of 1994, are in fact appointed to a particular Government Department or office by the appointing authority to the cadre of Urdu Translators-cum-Junior Clerks in that Government Department or office. Their service conditions are to be governed by the Service Rules applicable to Junior Clerks working in that Government Department or office, except to the extent that the Rules of 1994 provide otherwise. The Rules of 1994 may be utilized to determine the number of posts of Urdu Translators-cum-Junior Clerks in a Government Department or office by the Government and selection to the post by the Selection Committee, envisaged under those rules. To that extent, the procedure for recruitment may differ from other Clerks recruited under the Medical Service Rules, 1994. But, it is the appointing authority in the concerned Government Department or office, who would send a requisition in case of an Urdu Translator to the District Magistrate, who would make a selection through the Selection Committee envisaged under Rule 16 of the Rules of 1994 and forward the list of candidates in order of merit to the appointing authority.
36. In case of appointment of Urdu Translators-cum-Junior Clerks in the Department of Medical Health and Family Welfare, the mode of recruitment and conditions of service would be governed generally by the Medical Service Rules, 1994, except to the extent that a different procedure or mode is prescribed by the Rules of 1994. So is the case with all other Government Departments or offices, wherein Urdu Translators are to be appointed. The same would be the case with Urdu Translators-cum-Junior Clerks to be appointed to the service known as the Uttar Pradesh Adhinasth Shiksha Lipik Varg Sewa under the Rules of 1994, which is a service under the Department of Basic Education of the Government. This would be dealt with in some more detail a little later.
37. Thus, so far as Junior Clerks, functioning in the subordinate offices of the Department of Medical Health and Family Welfare are concerned, they are appointed by the Director (Administration), Medical Health and Family Welfare of the State. They are clearly a part of State Level Cadre and it does not matter to which subordinate office they are posted or even appointed initially. Their appointment initially made would be no more than posting to a particular subordinate office. Likewise, is the case with Urdu Translators-cum-Junior Clerks. There might be some issue about whether the appointment is one made to an office or Establishment of a Government Department at the State Headquarters, the Divisional Headquarters at the Commissionerate or the District Headquarters. But, that does not arise in this case. Assuming that the petitioner has been appointed to a District Level Office or a subordinate office in the Establishment of the Director General, Medical Health and Family Welfare, U.P., Lucknow, it does not mean that he has been appointed to a particular District or a District Level Cadre in that sense of the term. He can be transferred to any District Level Office across the State that is under the administrative control of the Director General, Medical Health and Family Welfare, U.P., Lucknow and has a sanctioned post.
38. Reverting to the facts of the petitioner's case, it is his stand that being found fit for selection, a Memo dated April 3, 1995 was issued to the petitioner by the office of the District Magistrate, which the petitioner asserts offered him appointment on the post Urdu Translator-cum-Junior Clerk in the office of the Chief Medical Officer, Muzaffar Nagar. The said appointment order, according to the petitioner, directed him to join services at the office of the Chief Medical Officer, Muzaffar Nagar.
39. This Court must remark here that the aforesaid stand of the petitioner is incorrect. A perusal of Memo No. 487/ Samanya Sahayak, dated April 3, 1995 issued by the office of the District Magistrate, a copy whereof is annexed as Annexure No. 5 to the writ petition, shows that the memo is a certification of the fact that the Selection Committee constituted under the Rules of 1994, after selecting the petitioner to the post of Urdu Translator-cum-Junior Clerk, recommended him for appointment. The petitioner was directed to contact the office of the Chief Medical Officer, Muzaffar Nagar for the purpose. There is no quarrel that the petitioner was appointed to the post of an Urdu Translator-cum-Junior Clerk in the office of the Chief Medical Officer by the competent appointing authority.
40. A perusal of the appointment letter relating to Mohd. Mustaqueem indicates that he has been appointed by the Director (Administration), Medical Health and Family Welfare, U.P. vide order dated May 31, 1995 to the office of the Chief Medical Officer, Muzaffar Nagar, which is a subordinate office under the control of the Director General, Medical Health and Family Welfare, Uttar Pradesh, and ultimately, a part of the Department of the Medical Health and Family Welfare of the State. It is nobody's case that Junior Clerks in the office of the Chief Medical Officer, initially appointed to a particular CMO's office are appointed there for life. The Junior clerks governed by the Medical Service Rules, 1994 hold a transferable post and they can be transferred from one subordinate office in the State to another, wherever there is an office or establishment under the control of the Director General, Medical Health and Family Welfare, U.P., Lucknow.
41. There is no reason, therefore, to infer on the basis of the Rules of 1994 that Urdu Translators-cum-Junior Clerks selected through a Selection Committee under the Chairmanship of the District Magistrate, Muzaffar Nagar and subsequently appointed to the office of the Chief Medical Officer, Muzaffar Nagar under orders of the Director (Administration), Medical Health and Family Welfare, U.P., hold a District Level Cadre Post. The appointing authority is a State Level Authority, that has got subordinate offices or Establishments all across the State. The posts of Urdu Translators-cum-Junior Clerks have been created by the Government Order dated August 20, 1994, no doubt in the office of the Chief Medical Officer amongst others, but there is nothing to show that it is a District Level Cadre Post. The Urdu Translators, like any other Junior Clerk, are to be appointed by a State Level Authority, that is to say, the Director (Administration), Medical Health and Family Welfare, U.P., Lucknow, who is the appointing authority of Urdu Translators-cum-Junior Clerks, in whichever Establishment or subordinate office of the Director (Administration), Medical Health and Family Welfare, U.P., they might be appointed. The fact, that Urdu Translators are not occupants of a District Level Cadre Post, is indicated by Rules 5(a), 5(f) and 6, amongst others, of the Rules 1994.
42. Rule 5(a) of the Rules of 1994 defines the appointing authority to mean the authority empowered to make appointment to a post of Junior Clerk in a Government Department or office, under relevant service rules or executive instructions, which clearly shows that the Urdu Translators-cum-Junior Clerks, though governed for some purposes by the Rules of 1994, are not to be appointed under the Rules 1994, but under some other Rules, called ''relevant service rules or executive instructions'. They are to be appointed by the appointing authority under those ''relevant rules or executive instructions'. Again, Rule 5(f) of the Rules of 1994 defines the services of Urdu Translators-cum-Junior Clerks in a Government Department or office as a service constituted under the relevant service rules or executive instructions.
43. Rule 6 of the Rules of 1994 stipulates that the strength of service in each Government Department or office, shall be such as may be determined by the Government from time to time under the relevant service rules or executive instructions. The common factor amongst all these provisions of the Rules of 1994 show that once selected under the said Rules, the nature of Urdu Translator-cum-Junior Clerk's Cadre as a District Level Cadre or State Level Cadre, would depend upon the Government Department or office, to which he/ she is appointed after selection. If for example, after selection under the Rules of 1994, the Urdu Translator-cum-Junior Clerk is appointed to a post in the Establishment of the Collectorate, governed by the Uttar Pradesh District Offices (Collectorate) Ministerial Service Rules, 1980 (for short, 'the Rules of 1980'), where the appointing authority is the District Magistrate, except in the case of Office Superintendent, for whom the appointing authority is the Commissioner of the Division, the Urdu Translator-cum-Junior Clerk would be governed by the Rules of 1980. In that case, the incumbent would be a part of a District Level Cadre, like any other Junior Clerk in the Establishment of the Collectorate. But, if appointed to a Government Department or office, that has its Establishments and subordinate offices throughout the State, the conditions of service of such an Urdu Translator-cum-Junior Clerk would be governed by the service rules of that Government Department or office referred to in the Rules of 1994 as the relevant service rules or executive instructions.
44. We are in respectful agreement with the opinion in this regard expressed by the learned Single Judge in Jahid Mohammad v. State of U.P. and others, Writ-A No. 10088 of 2021, decided on August 13, 2021.
45. The learned Counsel for the petitioner has particularly relied upon the decision of this Court of this Court in Trabuddin's case (supra) in support of the submission that the post of Urdu Translators-cum-Junior Clerks are not transferable. Attention of this Court has been drawn to the holding in Trabuddin's case (supra), which together with the contextual background reads:
"16. From the pleadings of the parties, it is not in dispute that respondents themselves do not treat petitioners as members of U.P. Police Force enrolled under Section 2 of the Act, 1861. In the Government Order dated 17.4.1995 also, it was clearly stated that posts of Urdu Translators-cum-Junior Clerk are outside the police rank posts. It thus cannot be doubted that petitioners are not members of U.P. Police force. Therefore, provisions and special provisions, as the case may be, which are applicable to the members of U.P. Police Force, who are governed by Act, 1961 and rules and regulations and orders issued thereunder, would not be applicable to petitioners. They are simply civilian, non Police personnel staff, posted in Police Department. They would be governed by rules and regulations framed under proviso to Article 309 of the Constitution and executive orders issued by State Government in purported exercise of power under Section 162 read with 166 of the Constitution.
17. With respect to transferability of post, it is not disputed that Rules, 1994 do not contemplate any such thing. State Government has clarified vide order dated 25.8.2006 that neither the posts nor the personnels, working as Urdu Translators-cum-Junior Clerk, are transferable or should normally be transferred. In view of this specific stand taken by respondent State of U.P., I do not find as to how Police Headquarters can take upon itself the task of laying down conditions of service or policy decision with respect to service matters of petitioners, contrary to the decision taken by State Government, who is principal body having legislative power to lay down conditions of service of these personnel. A transfer policy with respect to Urdu Translators-cum-Junior Clerk, no doubt is within the realm of State Government. If it decides to make it non transferable, U.P. Police Headquarters, in my view, does not possess any power and none has been shown by respondents-learned Standing Counsel whereby it can take a contrary policy decision. The decision taken in respect of Police personnel, is by virtue of power specifically conferred under Act, 1861 and rules and regulations framed thereunder but no such power has been conferred with respect to civilian staffs and unless such power is vested with them (U.P. Police Headquarter), I do not find that such a policy decision can be taken by it (Police Headquarters) in respect of transfer of persons working as Urdu Translators-cum-Junior Clerk. The Police Headquarters' circular dated 28.7.1997 is clearly unauthorised, without jurisdiction and illegal, particularly when State Government has already made it clear that posts and personnels making as Urdu Translator cum Junior Clerk are not transferable."
46. We have carefully considered the rules that were under consideration in Trabuddin's case (supra) and the principles laid down there. For one, the decision was rendered in the context that the petitioner was transferred under some policy decision of the Police Headquarters, whereas Urdu Translators-cum-Junior Clerks appointed by the Superintendent of Police, after selection by the District Magistrate in the Police Establishment, are not members of the U.P. Police Force. They are not governed by the Police Act, 1861 or the rules and regulations applicable to enrolled policemen. They are simply civilian, non-police personnel in the Police Department. It was opined that they would be governed by the rules framed under the proviso to Article 309 of the Constitution or an executive order issued by the State Government in the exercise of powers under Articles 162 and 166 of the Constitution. There is a further remark in Trabuddin's case (supra) to the effect that the Rules of 1994 do not contemplate any transfer. It is also observed that the State Government have clarified vide order dated August 25, 2006 that neither the post nor the personnel working as Urdu Translators-cum-Junior Clerks are transferable or should be transferred. It is in view of the aforesaid Government Order dated August 25, 2006 that the Court ultimately concluded that the Police Headquarters could not assume the authority to lay down conditions of service or do policy making. It was remarked that a transfer policy with respect to Urdu Translators-cum-Junior Clerks is within the domain of the State Government and if it had decided that these posts are non-transferable, the U.P. Police Headquarters had no power to take a contrary policy decision.
47. In the aforesaid judgment, the learned Single Judge has not noticed the various provisions of the Rules of 1994, which make it abundantly clear that service conditions, including the appointing authority, the strength of service in each Government Department or office relating to Urdu Translators-cum-Junior Clerks would depend on the Government Department or office, to which an Urdu Translator is appointed, by the relevant service rules, that is to say, the service rules applicable to the Government Department or office, wherever an Urdu Translator-cum-Junior Clerk is appointed. The Rules of 1994 would not govern it as the learned Single Judge has opined. Nor is it within the domain of the Government to issue a Government Order forbidding transfer of all Urdu Translators-cum-Junior Clerks, when according to the relevant service rules applicable to the Government Department or office, where an Urdu Translator-cum-Junior Clerk has been appointed, he holds a transferable post.
48. There are rules framed under the proviso to Article 309 of the Constitution governing the service conditions of Junior Clerks, that would be applicable to Urdu Translators-cum-Junior Clerks by virtue of the Rules of 1994. We are, therefore, not in agreement with the learned Single Judge in Trabuddin that the Rules of 1994 do not contemplate a transfer, and further, that once the Government had forbidden the transfer of Urdu Translators-cum-Junior Clerks by a Government Order, such Urdu Translators-cum-Junior Clerks cannot be transferred, unless the State Government takes a policy decision.
49. To our understanding, the subject is much governed by the Statutory Service Rules in different Departments of the Government and offices, where of course, some executive instructions to supplement the Statutory Rules can be issued, if the relevant rules permit.
Answer to the question referred
50. Our answer to the question referred by the learned Single Judge would, therefore, be that the post of an Urdu Translator-cum-Assistant Clerk (sic Junior Clerk) may be a District Level Cadre Post or a State Level Cadre Post, depending on the Government Department or office, wherein the Urdu Translator-cum-Junior Clerk is appointed and the service rules applicable to that Department or office.
Disposition of the Writ Petitions and Special Appeals
51. We now proceed to take up the Writ Petitions and Special Appeals as indicated in the opening part of this judgment for final determination, bearing in mind our answer to the question.
Writ-A Nos. 10004, 10365 and 11430 of 2021
52. The petitioner in the leading case was undisputedly appointed to a service, which is not a District Level Cadre Post. It is a post, whose appointing authority is the Director (Administration), Medical Health and Family Welfare, U.P., part of the office of the Director General, Medical Health and Family Welfare, Government of U.P. The Director (Administration), Medical Health and Family Welfare, U.P., or for that matter the Director General, Medical Health and Family Welfare, Government of U.P., functions under the control of the Department of Medical Health and Family Welfare of the State Government. The office of the Director General, Medical Health and Family Welfare, Government of U.P. has Establishments and offices throughout the State and the office of the Chief Medical Officer in any district is one such subordinate Establishment. The Medical Service Rules, 1994, which govern the service of the petitioner by virtue of the Rules of 1994, as these are the relevant rules, provide that service under the Medical Service Rules, 1994 means the Uttar Pradesh Medical Health and Family Welfare Department (Subordinate Office) Clerical Cadre Service. The Rules clearly make the petitioner part of a State Level Service and not a District Cadre Service. The same holds true of the petitioners in Writ-A No. 10365 of 2021 and Writ-A No. 11430 of 2021. Thus, there appears to be no impediment in transferring the petitioners in terms of the orders impugned dated July 15, 2021 under challenge in each of the three writ petitions under reference.
Writ-A No. 11378 of 202253. So far as this writ petition is concerned, the petitioner here was selected under the Rules of 1994 by a Selection Committee headed by the District Magistrate, Basti and appointed to the post of an Urdu Translator-cum-Junior Clerk in the office of the District Basic Education Officer, Basti. By the impugned order dated June 28, 2022, he has been transferred from the office of the District Education Officer, Basti to the office of the District Basic Education Officer, Siddharth Nagar.
54. In case of an Urdu Translator-cum-Junior Clerk appointed to the office of the District Basic Education Officer, the relevant service rules within the meaning of the Rules of 1994 would be the Rules of 1985. The service there is defined as Uttar Pradesh Adhinasth Shiksha Lipik Varg Sewa, under Rule 3(Chha) of the Rules of 1985. A ''subordinate office' has been defined under Rule 3(Ja) as the office of the Regional Deputy Director/ Regional Inspectress of Girls Schools/ District Inspector of Schools/ District Basic Education Officer/ Rashtrakrit Vibhagiya Pariksha, Allahabad. Likewise, under Rule 3(Ka) of the Rules of 1985, the appointing authority for a post shown in Schedule (Ka) is the authority shown, as such, against the relative post. A perusal of Schedule (Ka) shows that for a post of Junior Clerk the appointing authority is Regional Deputy Director of Education, which the Court was informed during the hearing is now the Director of Education (Basic), Uttar Pradesh.
55. The fact that the appointing authority of a Junior Clerk in the office of the District Education Officer is either the Regional Deputy Director of Education or the Regional Joint Director of Education or the Director of Education (Basic), U.P. would show that the post of Urdu Translator-cum-Junior Clerk in the office of the District Basic Education Officer is not a District Level Cadre post. It is either a Regional Cadre within the region of a Deputy or Joint Director of Education or a State Level Cadre post, if the appointing authority indeed has been upgraded and is the Director of Education (Basic), U.P. The petitioner here has not annexed his letter of appointment, except the recommendation dated February 28, 1995 issued in response to a requisition for appointment of an Urdu Translator under the Government Order. The District Basic Education Officer cannot be the appointing authority of a Junior Clerk in his office under the Rules of 1985 and a fortiori cannot be the appointing authority of an Urdu Translator-cum-Junior Clerk. The transfer order impugned in this petition, transferring the petitioner from Basti to Siddharth Nagar on the ground that it is a District Basic Level Cadre post, cannot be questioned.
Special Appeal (D) No. 97 of 2022
56. Now, taking up this special appeal, we find that the learned Single Judge has declined to interfere with the transfer order dated July 15, 2021 passed by the Director (Administration), Medical Health and Family Welfare, U.P., transferring the writ petitioner from the office of the Chief Medical Officer, Firozabad to the office of the Chief Medical Officer, Etawah. In doing so, the learned Single Judge has followed the decision of the learned Single Judge in Jahid Mohammad, which we have already approved in the earlier part of this judgment, on principle, while answering the question referred. Even otherwise, in view of the answer that we have given to the question and the remarks in relation to an Urdu Translator-cum-Junior Clerk governed by the Medical Service Rules, 1994, which are applicable in this case, we find no infirmity in the order impugned passed by the learned Single Judge.
Special Appeal No. 52 of 202257. In this appeal, the judgment of the learned Single Judge in Jahid Mohammad is under challenge. We have already expressed our agreement with the learned Judge's opinion on principle while answering the question referred to us, dealt with in the earlier part of this judgment. On facts, we find that the writ petitioner here was transferred from the office of the Chief Medical Officer, Meerut to the office of the Chief Medical Officer, Agra in the same capacity, that is to say, as an Urdu Translator-cum-Junior Clerk. His conditions of service are governed by the Medical Service Rules, 1994, where there is no lack of jurisdiction in the appointing authority, that is to say, the Director (Administration), Medical & Health Services, U.P., Lucknow in transferring an Urdu Translator-cum-Junior Clerk from one subordinate office to another, located in different districts. We do not find any good ground to interfere with the order impugned.
Special Appeal No. 522 of 202258. So far as this appeal is concerned, it has been filed against the direction carried in the order dated July 20, 2022 passed by the learned Single Judge in Contempt Application (Civil) No. 1452 of 2022. The direction has been issued on the foot of the interim order dated September 7, 2021 and confirmed on September 14, 2021, passed by the learned Single Judge in Writ-A No. 10004 of 2021, Mohd. Mustaqueem v. State of U.P. and others. The contempt proceedings were initiated with a case that notwithstanding the order of the learned Single Judge in Mohd. Mustaqueem's case (supra) to the effect that till the next date fixed in the case, the petitioner shall not be relieved, unless he has already been relieved, the petitioner has been relieved in willful violation. A clarification of the order was made on September 14, 2021 and despite the further order dated October 8, 2021, the petitioner was relieved from his earlier posting pursuant to the impugned transfer order. The learned Single Judge by the order impugned dated July 20, 2022 has issued directions to the effect that if the order passed on the writ side is complied with by the next date fixed before the learned Single Judge in the contempt proceedings, an affidavit of the contemnor would suffice; else the officer in contempt shall remain present in Court and charge shall be framed.
59. The entire edifice of the proceedings in Contempt Application (Civil) No. 1452 of 2022 are the interim orders of the learned Single Judge passed in Mohd. Mustaqueem's case (supra), which by the present common judgment and order, insofar as it relates to the said writ petition, we have found no merit in and propose to dismiss it, which would bring to an end all interim orders passed therein. No useful purpose would, therefore, be served in proceeding with the contempt in terms of the order dated July 20, 2022, which, therefore, ought to be set aside.
Special Appeal No. 523 of 202260. In this appeal, the order impugned is the order dated July 20, 2022 passed by the learned Single Judge in Contempt Application (Civil) No. 1453 of 2022. By that order, the learned Single Judge has issued certain directions ordering the contemnor-opposite party to comply with the orders dated August 18, 2021 and September 14, 2021 passed in Writ-A No. 10365 of 2021, or else appear before the Court by the date fixed for framing of charges. Since by this common judgment and order, we propose to dismiss the aforesaid writ petition, which would bring an end all interim orders passed therein, no useful purpose would be served by permitting the directions made by the learned Single Judge in the contempt proceedings to survive.
Orders
61. In the result, Writ-A Nos. 10004 of 2021, 10365 of 2021, 11430 of 2021, 11378 of 2022, Special Appeal Defective No. 97 of 2022 and Special Appeal No. 52 of 2022 fail and are dismissed. All interim orders passed in the writ petitions, wherever operating, are hereby vacated. Special Appeal Nos. 522 of 2022 and 523 of 2022 are hereby allowed. The order of the learned Single Judge, impugned in each of the two appeals, are set aside. The Contempt Applications pending before the learned Single Judge are consigned to records.
Allahabad January 9, 2023 Anoop (J.J. Munir) Judge (Rajesh Bindal) Chief Justice Whether the order is speaking :
Yes/No Whether the order is reportable :
Yes