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State Of Orissa vs Khageswar Das And Others on 12 August, 1975
Cites 4 docs
Article 16 in The Constitution Of India 1949
Article 3 in The Constitution Of India 1949
Article 14 in The Constitution Of India 1949
Article 359(1) in The Constitution Of India 1949
Citedby 53 docs - [View All]
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Gobind Chandra Mohapatra And Ors. vs Haribandhu Mohapatra And Ors. on 22 January, 1985
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Supreme Court of India
Equivalent citations: 1975 AIR 1906, 1976 SCR (1) 300
Bench: Untwalia, N.L.
PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
KHAGESWAR DAS AND OTHERS
DATE OF JUDGMENT12/08/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION:
1975 AIR 1906 1976 SCR (1) 300
1975 SCC (2) 553
ACT:
Orissa Industries Service Rules 1971, r. 3(1)(ii)-If violative of Art. 16 Constitution of India.
HEADNOTE:
Rule 3(1)(ii) of the Orissa Industries Service Rules, 1971, provided that the junior grade of the service shall include the posts of Deputy Directors, Senior lecturers in Engineering, Schools etc. besides the posts of Principal, Engineering Schools (except Mining Engineering) and Polytechnics which carry a special scale of pay. The 1st respondent was appointed a lecturer in a Mining Engineering School. In 1960, the School was brought under the administrative Control of the Industries Department of the State Government, and the respondent became an officer of the Industries Department. Later. he was appointed Principal of the School. In 1964, there was a bifurcation of the common cadre of the Department, and a separate cadre for teaching posts of Engineering Schools in the State was created. In 1967, the two cadres were again merged forming a combined cadre for the officers of the Industries Department. The reason given for the merger was that the separate cadre for teachers was not beneficial to them because, promotion prospects for them were bleak in view of the limited posts available for promotion. After the merger, in 1969, even though the 1st respondent was senior to the 2nd respondent, the latter was promoted as Joint Director superseding the former.
The High Court quashed the order and struck down r. 3(1)(ii) as violative of Art. 16.
Dismissing the appeal to this Court,
^
HELD: (1) In the resolution of 1967 merging the two cadres it was stated that the conditions of service of all the officers will be governed by a set of cadre rules to be framed later, but no such rules were framed at the time of promotion of the 2nd respondent. The 1971-rules were framed during the pendency of the writ application, filed by the 1st respondent, in the High Court. There was, therefore, at the time of promotion of the 2nd respondent, nothing to show that the post of a teacher or the Principal of a Mining Engineering School WAS treated as an ex-cadre post and on a separate footing for the purpose of promotion to the administrative posts. [303G-H]
(2) Rule 3(1)(ii) when it says in the first part Senior lecturers in Engineering Schools, it includes senior lecturers of Mining Engineering School also. Even when the two cadres were separated, all Engineering Schools including Mining Engineering Schools were placed on the SAME Footing. But, in the last part of the rule when referring to the post of Principal, the Principal of a Mining Engineering School is excluded. The exclusion is without any justification or reasonable basis. [304E-H]
Therefore, the rule is violative of Arts. 14 and 16 and the non-consideration of the case of the 1st respondent at the time of promotion of the 2nd respondent was wholly arbitrary and illegal. [33H; 304H]
(3) It is however not necessary to strike down the entire rule 3(1)(ii). It is sufficient if the words 'except Mining Engineering' are struck down and deleted. [304H] 301
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 254 (N) of 1974.
Appeal by special leave from the judgment and order dated the 30th November, 1972 of the High Court of Orissa in O.J.C. No. 129 of 1970.
Gobind Das and B. Parthasarathi, for the appellant. B. P. Maheshwari and Suresh Sethi, for respondent No. 1.
The Judgment of the Court was delivered by UNTWALIA, J.-The State of Orissa has preferred this appeal by special leave from the judgment and order of the High Court passed in Writ Petition filed by respondent No.
1. Respondent No. 2 was appointed by promotion to the post of Joint Director of Industries, Government of Orissa in supersession of the claim of respondent No. 1. The High Court has quashed the said order and directed the appellant to consider the case of respondent No. 1 for promotion to the post of Joint Director according to his seniority in the combined cadre formed by Resolution dated 2-10-1967. Rule 3(1) (ii) of the Orissa Industries Service Rules, 1971 has been struck down as being violative of Article 16 of the Constitution of India.
Respondent No. 1 was appointed as a lecturer in Mining in the Orissa School of Mining Engineering? Keonjhargarh on 6-2-1960. The said School was brought under the administrative control of the Industries Department of the Government of Orissa in pursuance of a Resolution dated 18- 2-1960. The service of respondent No. 1 thereupon stood transferred under the administrative control of the Industries Department with effect from 21-3-1960. The post of the lecturer in the Mining Engineering School was upgraded by order of the State Government made in August, 1960. The petitioner was brought into the common cadre of the Industries Department of Government of Orissa and while he was so continuing, he was appointed as Principal of the Mining Engineering School. The provisional appointment made was regularized by the Industries Department by a notification dated 19-12-1962, a copy of which was Annexure D/2 to the Writ application. This notification clearly shows that at that time respondent No. l was treated as an officer of the Industries Department.
Then came a Resolution of the Government dated 21-4- 1964. The common cadre of the Industries department was bifurcated into two. A separate cadre was created for teaching posts of Engineering Schools in Orissa including the Mining Engineering School. Respondent No. 1 exercised his option to remain in the teaching cadre of the Industries Department.
As per Resolution of the Government dated 2-10-1967 the two separate cadres in the Industries Department were again amalgamated and merged into one. Consequently the cadre of the teaching staff of the Engineering Schools including the Mining Engineering School and that of the administrative state became a single combined cadre.
6-L 839 Sup Cl/75
302
Even then respondent No. I was not considered for promotion to the post of Joint Director when respondent No. 2 who was junior to him was promoted to the post. Feeling aggrieved by the non-consideration of his case for promotion, respondent No. 1 filed the writ application in the year 1970. During the pendency of the writ application, the Governor of Orissa framed the orissa Industries Service Rules, 1971-hereinafter called the Rules, under proviso to Article 3()9 of The Constitution. Respondent No. 1 amended his writ application, 1 made out a case of discrimination in the framing of the Rules and attacked them as being violative of Articles 14 and 16 of the Constitution.
In paragraph S of the counter filed by the appellant the formatio of a combined cadre by Resolution dated 2-10- 1967 was admitted. But it was asserted that in spite of the merger of the two cadres into one the intention of the Government was to treat the post of the Principal cf a Mining Engineering School as an ex-cadre post under the Industries Department. The Mining Engineers were excluded from the junior grade of service under the Industries Department in accordance with the Rules of 1971. Earlier also, respondent No. 1 got class I post out of turn treating him as belonging to ex-cadre post.
The High Court has come to the conclusion that before 21-4-1964 there were no separate cadres for the teaching and the administrative staff of the Industries Department. The cadre was one. It was bifurcated in 1964 and the two bifurcated cadres were again united and merged into one on and from 2-10-1967. There was, therefore, no justification at all in not considering the case of respondent No. 1 for promotion to the post of Joint Director as all persons in the combined cadre eligible for promotion had to be considered. Respondent No. 1 was senior to respondent No. 2 in the combined cadre and yet his claim was ignored on a ground which was not substantiated. The relevant rule was discriminatory and had no reasonable nexus with the object of the- Rules.
The judgment of the High Court was handed down on the 30th November, 1972-long before the issuance of the notification dated 27th June, 1975 by the President of India under Article 359(1) of the Constitution. The rule was declared ultra vires on the ground of J violation of Articles 14 and 16. The State of orissa was the appellant before us. It was, therefore, agreed on all hands that this appeal was not a proceeding pending in this Court for the enforcement of the right under Article 14 of the Constitution and was, therefore, not suspended. The enforcement of the right was made by the delivery- of the High Court judgment and the State merely wanted in this appeal a deletion of that enforcement.
Mr. Gobind Das, learned counsel for the appellant, submitted that the posts of the teachers in the Mining Engineering School in Orissa including the posts of the Principal have always been treated as ex-cadre posts in the Industries Department. The teachers and the Principal of the Mining Engineering School were not considered for promotion to the posts of Administrative Department because few persons
303
were available to man the posts in the Mining Engineering School. It was because of this reason that the case of respondent No. 1 was not considered and the Rules were also framed with that object in view. In any view of the matter, counsel submitted, that the whole of Rule 3(1) (ii) ought not to have been declared as void and only the offending portion ought to have been struck down.
The main part of the argument put forward on behalf of the appellant does not stand scrutiny and must be rejected. It could not be seriously disputed that respondent No. 1 was an officer of the Industries Department and appointed to the post of the Principal of the Mining Engineering School in that Department. There is nothing to indicate that the post of the Principal or of the teacher of any Engineering School or of the Mining Engineering School was an ex-cadre post. Then came the Resolution date(l 21st April, 1964. The new scales of pay were fixed for the teachers in Engineering in The Engineering Schools including the Mining Engineering School in the State of Orissa The contention of Mr Das that this fixation of scales was only for the Engineering Schools and not for Mining Engineering School is not correct. Clearly all Engineering Schools were placed on the same looting and paragraph 3 of` this Resolution runs as follows: "The teaching posts in Engineering Schools which till now were included in common cadre with other posts in the Directorate of Industries will be placed in a separate cadre to which the above scale of pay will apply.
Then came the merger resolution after about three years on the 2nd October, 1967 a copy of which was Annexure I to the writ application. The subject of the notification, Annexure l, is ''formation of a combined cadre for the officers of the Industries Department". It was clearly mentioned hl This notification that after the teaching posts were placed in a separate cadre "it was felt that the promotion prospects would be bleak due to the formation of a separate cadre for teachers in view of the limited posts available for promotion". Hence formation of separate cadre for teachers was considered not to be beneficial to them. So the combined cadre was brought into force with effect from the date of the issue of the Resolution dated 2nd October, 1967 in supersession of the earlier decision to have a separate cadre for teachers. Lastly it was stated in this Resolution "The conditions of service of all the officers will be governed by a set of cadre rules to be framed later on". No rules were framed until the framing of the Rules in 1971. As against a categorical statement in the Resolution dated 2-10-1967 there was nothing whatever to show that the post of a teacher or the Principal in the Mining Engineering School was treated as an ex-cadre post and on a separate footing for the purpose of promotion to the administrative posts. The non-consideration of the case of respondent No. 1 at the time respondent No. 2 was promoted to the post of Joint Director in or about the year 1969 was wholly arbitrary, unjustified and illegal. The High Court was right in making the order which it did on the writ application of respondent
304
As against the purpose and object of the merger of the cadre mentioned in the Resolution dated 2-10-1967 we find Rule 3 of the Rules going contrary to them. Rule 9(1) of the Rules says:
"Promotions to the posts of Senior grade in Class I shall be made from among the members of the Junior grade in Class I :"
Constitution of the service is provided in Rule 3. We are concerned with Rule 3(1). It reads as follows: "3 ( 1 ) The cadre of the service shall consist of two branches, viz., Class I and Class ii, the former comprising two grades, viz., the Senior grade and the Junior grade, as indicated below:-
(i) The Senior grade shall include posts of Joint Directors and officers of equivalent status as may be declared by Government from time to time.
(ii) The Junior grade shall include the posts of Deputy Directors, Senior Lecturers in Engineering Schools and such other posts as may be declared by Government from time to time to be of equivalent status, besides the posts of Principal. Engineering Schools (except Mining Engineering) and Polytechnics which carry a special scale of pay.
Clause (ii) of the Rules when it says in the first part that the "junior grade shall include the posts of Deputy Directors, Senior Lecturers in Engineering Schools" it means clearly Senior Lecturers in Engineering Schools not excluding Mining Engineering School. But in the last part when in the junior ;grade were included the posts of Principals, Engineering Schools by the words "except Mining Engineering" given in the parenthesis, the post of the Principal of the Mining Engineering School was excluded. It was so done during the pendency of the writ application of respondent No. 1 and without any reasonable and sound basis for making a discrimination a propos the post of the Principal of the Mining Engineering School. We find no justification for making the distinction in the junior grade of Class I service in the case of the Principal of Mining Engineering School. The rule in that regard has rightly been held to be violative of Articles 14 and 16 of the Constitution by the High Court. But striking down of the whole of clause (ii) of Rule 3(1) of the Rules was not necessary. Only the words in parenthesis had to be deleted and struck down on that account. That would serve 305
the purpose of making the posts of Principal of all Engineering Schools including the Mining Engineering School being the posts in the junior grade, Class I. For the reasons stated above, we find no merit in this appeal. It is accordingly dismissed but subject to the clarification made above with costs payable to respondent No. 1.
V.P.S. APPeal dismissed.
306
W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 1 of 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 7th September, 2010 Judgment Delivered On:10th September, 2010 + WP(C) 2623-29/2004 DIRECTOR OF ACCOUNTS & ORS. …Petitioners Through : Mr.Maninder Singh, Senior Advocate with Mr.Gaurav Sharma and Mr.J.P.Karunakaran, Advocates Versus ANIL KUMAR MEHRA …Respondent Through: Ms.Arti Mahajan, Advocate WP(C) 17688-92/2004 DIRECTOR OF ACCOUNTS & ORS. …Petitioners Through : Mr.Maninder Singh, Senior Advocate with Mr.Gaurav Sharma and Mr.J.P.Karunakaran, Advocates Versus CHETAN KUMAR RAJPUT & ORS. …Respondents Through: Ms.Arti Mahajan, Advocate for R-1, 4 and 5 WP(C) 2441/2010 DIRECTOR OF ACCOUNTS & ORS. …Petitioners Through : Mr.Maninder Singh, Senior Advocate with Mr.Gaurav Sharma and Mr.J.P.Karunakaran, Advocates Versus R.K.KAPOOR & ORS. …Respondents Through: Ms.Arti Mahajan, Advocate for R-1 Mr.Sandeep Jha, Advocate for R-2 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 2 of 9
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J.
1. The undisputed position is that pertaining to the matters of accounts a full-fledged unit having an independent cadre and applicable service rules which functions under the overall supervision of the Chief Controller of Accounts has been created by the Union of India which caters to the needs of the various Ministries, Offices and Departments of the Union of India. A completely separate cadre stands constituted pertaining to the Cabinet Secretariat and pertaining to the work of accounts of the Cabinet Secretariat and various units under it like RAW, Special Security Bureau (SSB), Chief Inspector of Armaments (CIOA) etc. are manned by this cadre which has independent service rules.
2. Thus, it is a case of two different cadres, as would be evident from the further facts noted by us hereinafter.
3. The respondents of all the writ petitions were inducted in the accounts cadre under the Cabinet Secretariat and were working as Senior Auditors/Assistant Account Officer. They had nothing to do with the cadre in the Accounts Department of the Union of India or for that matter the Ministry of Home Affairs.
4. The Central Government took a decision that the SSB and CIOA units be transferred under the administrative control of the Ministry of Home Affairs on as is where is basis and accordingly on 15.1.2001 the Cabinet Secretariat issued the necessary order but deferred actual control be handed over pending completion of some procedural formalities being
W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 3 of 9
identification of the posts and the personnel which had to be transferred and finally the Cabinet Secretariat passed an order on 9.3.2001 transferring 125 posts to the Ministry of Home Affairs and on 16.4.2001 an office memorandum was issued by the Ministry of Home Affairs that the ministerial staff transferred would be absorbed on as is where is basis.
5. Apart from the issue whether the ministerial staff assigned to the units SSB and CIOA could be transferred outside their cadre and absorbed without their consent, relevant would it be to note that the decision to transfer the two units under Ministry of Home Affairs was notified on 15.1.2001 and it was stated that the transfer would be on as is where is basis and this required the existing ministerial staff in the two units to be so transferred.
6. The respondent of W.P.(C) No.2623-29/2004 was not working under the SSB unit under the Cabinet Secretariat as on 15.1.2001. He was transferred /posted in the SSB unit on 26.2.2002 and by March he was transferred to the Ministry of Home Affairs. Likewise, the respondent of W.P.(C) No.2441/2010 was not working either under the SSB unit or CIOA as on 15.1.2001. He was transferred/posted in the SSB unit (on a date not known), after 15.1.2001 and was likewise transferred under the Ministry of Home Affairs. To this extent these respondents have an additional plea to urge vis-à-vis the respondent of W.P.(C) No.17688-92/2004 who was working in the SSB unit as on 15.1.2001.
7. The three respondents had filed independent original applications before the Central Administrative Tribunal challenging the unilateral act of the Cabinet Secretariat in transferring their services to the Ministry of Home Affairs. How were they prejudiced was brought out by the respondent of W.P.(C) No.2441/2010. He exposed that the Ministry of Home
W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 4 of 9
Affairs was treating him as the junior most Assistant Account Officer by holding that the applicable recruitment rule did not envisage any induction by transfer into the cadre and thus he must rank the junior most.
8. Allowing the Original Application filed by the respondent of W.P.(C) No.2623-29/2004 vide impugned order dated 29.10.2003 which is the order prior in point of time vis-à-vis the orders passed in the original applications filed by the two respondents of the other two writ petitions, the Tribunal held in his favour on two grounds.
9. Firstly, the Tribunal noted that FR 9(4) defined cadre to mean the strength of a service or a part of a service sanctioned as a separate unit and thus the respondent of the said writ petition i.e. the applicant before the Tribunal was on the strength of a service under the Cabinet Secretariat and held a cadre post under the Cabinet Secretariat. The Tribunal further noted that as per FR 15 it was permissible to transfer a Government servant from one post to another, but the same had to be within the cadre. The Tribunal further noted the decision of the Supreme Court reported as 2003 (2) SCC 632 P.U.Joshi & Ors. Vs. Accountant General Ahmedabad & Ors. and read the said decision to interpret the law that it was open to the Government to amalgamate department or bifurcate departments, merge and demerge cadres, but by and under appropriate rules. The Tribunal noted that no such rules were notified bifurcating the accounts cadre under the Cabinet Secretariat and thereafter merging one segregated unit thereof with the Accounts Department under the Ministry of Home Affairs. Thus, the Tribunal held in favour of the applicant before it.
10. A second line of reasoning applicable to the respondent of W.P.(C) No.2623-29/2004 has also been adopted
W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 5 of 9
by the Tribunal to hold in his favour. The Tribunal held that the decision notified on 15.1.2001 was to transfer on „as is where is basis‟ the SSB unit and the CIOA unit from under the Cabinet Secretariat to the Ministry of Home Affairs and since the applicant before it was not either under the SSB unit or the CIOA unit as on said date, he could not be therefore transferred to the Ministry of Home Affairs.
11. The decision which is second on the point of time is dated 2.1.2004 allowing the Original Application filed by the respondents of WP(C) No.17688-92/2004 in which the Tribunal followed the decision dated 29.10.2003 and held on the first line of reasoning of the said decision that the applicant could not be transferred outside his cadre.
12. The third decision in point of time is dated 4.12.2009 wherein the Tribunal held in favour of the respondent of WP(C) No.2441/2010 adopting the twin reasoning as per the order dated 29.10.2003.
13. Learned counsel for the petitioners urged that in the letter of appointment of all the respondents it was specifically mentioned that: ‘the appointment carries with it the liability to be transferred out of Delhi/department, if any portion of the office moves elsewhere or if any work done in the office is transferred elsewhere.’
14. Counsel urged that un-disputably the respondents of the three captioned writ petitions accepted each and every term of the letter of appointment and thus they had already given consent to be transferred to any department or office if the work was transferred elsewhere. Counsel urged that it was a case of the SSB Unit and the CIOA Unit i.e. two offices under the Cabinet Secretariat moving elsewhere and thus the respondents of the three captioned petitions were liable to be transferred. Counsel urged that the Tribunal erred in not even
W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 6 of 9
considering the aforesaid argument.
15. The submission urged has to be noted and simply rejected for the reason that the applicable clause in question has to be understood within the parameters of law and not contrary to the law. The clause simply means that if any portion of the office under the Cabinet Secretariat is moved elsewhere, the respondents would be liable to serve at the said elsewhere. To put it pithily, the clause does not mean and cannot be interpreted to mean that the respondents could be transferred outside their cadre.
16. Thus, the various decisions cited by learned counsel for the petitioners which hold that an employee is liable to be transferred by the employer to any place or unit of the employer are wholly inapplicable for the reason the said decisions pertain to a transfer under the same employer but to a different work place. We need not note the said decisions which have been cited in the Brief Synopsis List of Dates filed along with the writ petition.
17. In the decision reported as 2003 (2) SCC 632 P.U.Joshi & Ors. Vs. Accountant General Ahmedabad & Ors. it was held:-
“The State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts.”
18. Suffice would it be to state that none can dispute the power of the Government to bifurcate a cadre as also amalgamate departments and cadres, posts etc. but by and under appropriate rules.
W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 7 of 9
19. The reason why appropriate rules have to be framed is that mergers and de-mergers of cadre affect the rights of the employees concerned and these rights are governed by the Rule of Law. As in the instant case, some employees on the cadre strength of the Cabinet Secretariat would be de-merged from their cadre and then would be amalgamated in the cadre under the Ministry of Home Affairs. The necessity of the Rules would be in light of the law laid down by the Supreme Court reported as 1981 (4) SCC 130 State of Maharashtra Vs. Chandrakant Anant Kulkarni, wherein pertaining to merger of cadres it was held that the principles for effecting integration would be requiring equation of posts on the principles:-
“(1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts: (a) Nature and duties of a post; (b) Powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) The minimum qualifications, if any, prescribed for recruitment to the post and; (d) The salary of the post."
20. In the decision reported as 1987 (Supp) SCC 257 Inder Singh & Ors. Vs. Vyas Muni Misgra & Ors. it was held:-
“Merger or bifurcation of a cadre is an executive act and normally the Court does not deal with it. It is for the State to consider whether two groups of persons working under two distinct posts perform the same W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 8 of 9
kind of duties or not and whether in implementing the directive principle, as contained in Article 39(d) of the Constitution, it is necessary to merge these two posts into one cadre or post. If the State Government is of the view that it is necessary that there should be a merger of the two posts into one post, the State Government has to take steps in that regard by framing proper rules with regard to seniority, promotions, etc. But, when two groups of persons are in the same or similar posts performing same kind of work, either in the same or in the different Government departments, the Court may in suitable cases direct equal pay by way of removing unreasonable discrimination and treating the two groups, similarly situated, equally.”
21. In the decision reported as 1998 (4) SCC 598 S. P . Shivprasad Pipal Vs. Union of India & Others, it was held:-
“Under Article 309 of the Constitution the legislature is empowered to regulate the recruitment and conditions of service of persons appointed to public post in connection with the affairs of the union or State. The proviso to Article 309, however, empowers the President, in the case of services and posts in connection with the affairs of the union to make rules regulating the recruitment and conditions of services of persons appointed to such services and posts until provision in that behalf is made or under an Act of the appropriate legislature. The power to regulate recruitment and conditions of service is wide and would include the power to constitute a new cadre by merging certain existing cadres.”
22. Learned counsel for the petitioners did not dispute that no rules have been framed to effect de-merger within the Cabinet Secretariat and further, no rules have been framed for the merger of the staff under the Cabinet Secretariat in the cadre under the Ministry of Home Affairs. Further, learned counsel conceded that no options were sought from the respondents of the three captioned writ petitions before they were transferred under the Ministry of Home Affairs.
23. What has happened is, as noted in para 7 above,
W.P.(C) Nos.2623-29/2004, 17688-92/2004 & 2441/2010 Page 9 of 9
the respondents, in the absence of any rules, are being treated as the junior most officers against the respective posts held by them under the Ministry of Home Affairs. This brings out the facet that unless appropriate rules are framed the transfer of the respondents would be in violation of their Constitutional Rights guaranteed under Article 14 and 16 of the Constitution of India.
24. The writ petitions are accordingly dismissed.
25. The petitioners shall pay costs to the respondents of the three writ petitions which we quantify to be Rs.5,000/- in each writ petition.
(PRADEEP NANDRAJOG) JUDGE (MOOL CHAND GARG) JUDGE SEPTEMBER 10, 2010 mm
