P. G. Joshi and Ors., Etc. Etc. v. the Director General, Posts and Telegraphs, New Delhi, Etc.

Judgment

ORIGINAL JURISDICTION : Writ Petitions Nos. 953-958, 787-797, 835, 858, 1055, 1121-1127, 1168, 2029, 2052 of 1973 and 107-108, 42, 45, 46 of 1974. Petitions under Art. 32 of the Constitution of India. AND Writ Petitions Nos. 1649, 1993 of 1973 and 58-62, 64-65 & 282 of 1974. Petitions under Art. 32 of the Constitution of India. AND CIVIL APPEALS Nos .. 467 and 713 of 1973. From the judgment & Oirder dated the 4th August/28th April, 1972 of the Patna High Court in C.W. Jurisdiction Cases Nos. i679 & 1610170. AND CIVIL APPEAL No. 1421 of 1973. Appeal by special Ieav<: from the judgment and order dated the 10th October, 1972 of the Orissa High Court in OJC. No. 473 of 1971. AND CIVIL APPEAL Nos. 1718 to 1821 of 1972. From the judgment and order dated the 1st March, 1972· of the Madras High Court in W.As. Nos. 557-559 and 591 of 1971. AND CIVIL APPEAL Nos. 366 to 371 of 1973. From the Judgment and order dated the 15th January, 1972 of the Kerala High Court in C.W.As. Nos. 116, 136, 159, 158, 157 and 79/1972.

AND CrvIL APPEALS Nos. 82.1-823 and 1782-1'!,33 of 1973, 8 p, Q, JOSHI v. DIRECTOR p & T (Mathew, !.) S. S. Khanduja, for the petitioners (In W.Ps. 954-58173.) S. K lain, for the petitioner (In W.P. 953173) A. K. Sen, and S. K. Bisaria, for the petitioner (In W.Ps. 787-97, 835, 858173, 1186 & 1192174 and for appellants (In CAs. 821-23, 1792-93173) A. K. Sen, Hardayal Hardy,,K. K. Sinha, S. K. Sinha, S. K. Bisaria, S. S. Khanduja, K. D. Naranjan and B. B. Sinha, for the petitioners W.Ps. Nos. 1649 & 1993173, 58-62, 64-65174, 282174, 1055, 2029, 2052/73, 107, 108, 45-46174 and for respondents (in C.As. 467, 713/ 73) and for respondents 2-5 and 7 (In C.A. )421173.) H. B. Datar, R. B. Datar and A. S. Nambiar, for the petitioners (in W.PS. Nos. 1121-27173) and for appellants (In C.As. 366-71/ 74). . F. S. Narima11, Additional Solicitor General for India, for respond~nts (In W.Ps. 953 & 787173, 1055/73 and C.As. 1718172, 713 & 1421173, :69/74 & 825/73). G. L. Singhi, for respondents (In W.Ps.

953 & 787173 and C.A. No. 1718172.) S. P. Nayar and M. N. Shroff, for the appellants (In C.As. 467, 713 & 1421173), 1718-1721172 and for respondents (In W.Ps. 953- 958,-787-797, 835, 858, 1055, 1121-1127, 1186-1192, 2029, 2052/ . 73, 107, 108, 42, 45, 46/74, 1649, 1993173, 58-62, 64, 65, & 282/ 74) and respondents (In C.As. 1421 /73, 366-371174, 821-823, 1792, 1793173). K. S. Ramamurthy and A, 1'. M. Sampath, for respondents (In C. As. 1718-1821 of 72). The Judgment of the Court was delivered by MATHEW, J.-In all these writ petitions and civil appeals, the question for consideration is practically the same. They are, therefore, disposed of by this common judgment. We will take up for consideration Civil Appeals No. 366-371 of 1974, 821-823, 1792, 1793 of 1973 and 1718-1721 of 1972. The appellants in Civil Appeals No. 366-371 of 1974, 821-823, 1792, 1793 of 1973 and the respondents in 1718-1721 of 1972 were working as clerks in the Posts and Telegraphs ~epartmcnt. .

The appellants ~ntioned above were selected and appomted as Wlfel~ss Licence Inspectors. The selections were made m . accordance with the provisions of rule 279/ 4 of the Posts and Telegraphs Manual, Vol. IV (Establishments). The rule was promulgated by the Director General of Posts and Telegraphs with effect from March 1, 1967. The rule stated that appointments to the post of Wireless Licence Inspectors in any Division are to be made from amongst the . clerks working in the Division subject to certain exceptions. The rule prescribes the conditions of eligibility and also of the necessity to pass a. written test and then it provides : "An official appointed as Wireless Licence Inspector shall not ordinarily be allowed to hold such a post for more than 3 years continuousLy at one time. An official who has worked as Wireless Licence Inspector for 3 years continuous· ly should not ordinarily be appointed to hold ·such a post within the next three years.

The period of tenure shall not be extended in any case except on very strong administrative grounds and the prior approval of the Director-General should be obtained." The contention of these appellants before the High Courts was that rule 279/4 is opposed to the latter part of the decision of the Government of India dated November 15, 1958 dealing, among other things, with the post of Wireless Licence Inspectors and Town Inspectors. The contention of the respondents in Civil Appeals No. 1718· 1721 of 1972 was that, though they were selected and appointed as Town Inspectors under 27913 promulgated by the Director General of Posts and Telegraphs for a period of three years, they were made permanent in the posts by virtue of the aforesaid decision of the Gov· ernment of India. That decision reads : "Indian Posts & Telegrap~s Department (Office of the Director General, Post & Telegraphs) Dated New Delhi, the 15th November. 1958. To All Heads of Circles SUBJJ,CT :

Removal of certain posts from the list of tenure posts included in para 6 of the Manual of appointments and allowances. The President has decided that the post of (i) clerks and I-J.ead Postman at Port Blair Head Office, (ii) clerks in Port Blair Radio Office, (iii) Wireless Licence Inspectors, (iv) H.S.G. Sorting Inspectors and Assistant Superintenuents, R.M.S., (v) Town Inspectors of Post Offices men· tioned in iteins 8, 12, 13, 14 and 15 respectively of the list of tenure posts in this paragraph should be deleted. These posts should, however, be treated like other posts for which the rotational transfers are prescri~d, the period of stay of ea1:h official being limited to 4 years in the case. of H.S.G. p, G. JOSHI v. DIRECTOR p & T (Mathew, I.) Sorting InspectO{s (now called Sorting Assistant Superinten· dents) and Assistant Superintendents, R.M.S. and 3 years in the case of others." "Necessary amendments to rule 60 of the P & T Manual, Vol. IV, will issue in due course."

The appellants i_n Civil Appeals Nos. 366-371 of 1974, 821-823, 1792, 1793 of 1973 and the respondents in 1718-1721 of 1972 sub· milted that since, by the decision of the Government of India, the posts of Wireless Licence Inspectors and Town Inspectors were deleted from the list of tenure posts, they b,ecame entitled to hold the posts without any limit of time subject to the condition that they may be transferred from one place to another according to what is called the rule for rotational transfers. The decision of the Government of India, did two things. It de· leted the posts of Wireless Licence Inspectors and Town Insp~ctors from the list of tenure posts. It directed that the posts of Wireless Licence Inspectors and Town Inspectors be treated like other posts for which rotational transfers are prescribed.

It is seen from paragraph 6 of the Manual of Appointments and Allowances of Officers of the Indian Posts and Telegraphs Department that both the. posts of Wireless Licence lnsp~ctor and Town Inspector of Post Offices were included in the list of tenure posts. A 'tenure post' is defined in Fundamental Rule 9(30-A) as follows: "A 'tenure post' means a permanent post which an individual Government servant rriay not hold for more than a limited period.'' Neither the post of Wireless Licence Inspector nor that of Town Inspector answers this definition. That apart, the inclusion of these posts in the list of tenure posts created administrative difficulties. That is clear from the files and notings referred to in the Judgment of the Bombay High Court (Nagpur Bench) in special Civil Applications No. 1 and 240 of 1973 decided on September 15, 1973.

It would. therefore, appear that the posts of Wireless Licence Inspectors and Town Inspectors were removed from the list of tenure posts because they. not being permanent posts, did nM fall within the definition of 'tenure po~ts'. The deletion was not on account of anv decision by the Government of India to m::t~e the appointments of the incumbents of these posts permanent. If that had been the decision, the language would havl';; been different. It was contended that the posts of Wireless Licence Inspectors and Town Inspectors constitute separate cadres. Paragraph 50 of the Manual of Appointments and Allowances · stat·~s that the posts of Wireless Licence Inspectors are, from the 7th December, 1945, filled from among the post office clerks in the Circle and ckrks of the Wireless Section of the Circle offices on the Post Office scales of pay, and that these officials wi!~, when they work as Wireless Licence Inspectors, draw pay in their own scale (Post Office scale Rs. 60-~0-120-EB-50-170) and will, in addition, be granted special pay, as provided in paragraph 51 ( 17).

Paragraph 51(2) states that the Governor General in Council has ordered that the posts ·of Town Inspectors attached to General Pos.t Office and other First Class Head Post Offices will be filled by selection from amongst ordinary time-scale clerks belonging· to the respective General Post Office or First Class Head Post Office group, and that these ordinary time-scale clerks, while actually holding the posts of Town Inspectors specified abov·~ will draw a special pay of Rs. 30/- per month under Fundamental Rule 9(25 )(a) in addition to pay in their own tim~ scale. Paragraph 51 (17) states that Post Office Clerks in the Circle and clerks of the Wireless Section of Circle offices on the Post Office scales of pay, appointed to work as Wireless Licence Inspectors after the 7th December, 1945., may draw in addition to pay i._n their own clerical time scales, a special pay of Rs. 30/- a month under F.R. 9 (25 )(a) and (b).

No specific provision for constituting the posts of Wireless Licence Inspector or Town Inspectors into separate cadres was broug(lt to our notice. 'Cadre' is defined in Fundamental Rule 9( 4) to mean : "Cadre means the strength of a service or a part of a service sanctioned as separate unit". There are no materials to hold that the posts of Wireless Licence Inspector and Town Inspector have been sanctioned as separate units. No separat·~ time scale has been provided for Wireless Licence Inspectors and Town Inspectors and, the time-scale clerks who. were appointed to these posts, continued in the same time scale of pay of clerks. As already stated, on appointment as Wireless Licence Inspectors and Town Inspectors, they were entitled to a special pay pf Rs. 30 /- per month. 'Special pay' has been defined in Fundamental Rule 9(25) thus: ·'Special pay means, an addition, of th~ nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of (al the specially arduous nature of the duties; or (b) a specific addition to the work or responsibility; or ( c) the unhealthiness of the locality in which the work is performed."

The provision for payment of a special pay of Rs. 301- in addition to the time scale pay of clerks is inconsistent with the constitution of a separate cadr'e of Wireless Licence Inspectors and Town Inspectors. The provision for special pay shows that they continue in the cadre of time-scale clerks. Appointment as Wireless Licence Inspectors or Town Inspec:tors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post. Though, for directly recruited Wireless Licence Inspectors, there is an avenue of promotion from those posts to the posts of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for JI. G. JOSfil v. DIRECTOR P & T (Mathew, /,) Wireless Licence Inspectors appointed from amongst time:scale clerks. Their avenues of promotion are from their substantive pqsts of time- · scale cler~~.

The posts of Wireless Licence Inspectors to . which · time-scal·e clerks are appointed by selection did not constitute a separate ca~re and the appointments are not by way of promotion. The posts of Wireless Licence Inspectors are in the cadre of time-scale clerks and carry a special pay on account of additional work. Th! mention of the posts of Wireless Licence Inspectors or the specification of the pay of the Wireless Licence Inspec-ors along with those of the time-scale clerks in the Central Civil Services (Revised Pay) Third Amendment RulesJ 1973, which came into force on January 1, 1973, .wo11ld not show that the posts· of Wireless Licence Inspectors were separate cadre posts.

It was then contended that the decision of the Government of India was that th·e posts of Wireless Licence Inspectors and Town Inspectors should be treated like other posts for which rotational transfers are prescribed and that, by that deCision, it was directed that these posts should be included among the posts mentioned in rule 60 of Chapter 11 of the Posts and Telegraphs Maqual, Vol. IV, bty amending the rule. • It was, therefore, submitted that the decision of the Governm-ent of India was clearly intended to confer on the incumbents of the posts the title to hold them till their superannuation. A reference to rule 60 would make it clear that it does not speak of rotational transfers. All that the rule provides is that posts included under the rule "should not be occupied by the same officials continuously for more than the. period showrt against each."

But, as the .decision of the Government dated November.-15, 1.958 directs that these posts should be included under rule 60 and since the decision is that these posts should be treated like other posts for which rotational transfors are prescribed, we will proceed on the assumption that that rule deals with rotational transfers. But what follows ? · The diction- . ary meaning of 'rotational' is : regular and recurring; ~uccession in office or duties. An element of rotation must be involved in rotational transfer. But what is the rotation. if this submission js accepted? . It was submitted that the expression 'rotational transfer' means · transfer from one p1ace to another place and from one division to another division, but in the same cadre. Even if the submission is accepted, it would not in any way change the position, for, as we have already seen, the posts of Wireless Licence Inspectors and Town .

Inspectors form part and· parcel of . the clerical cadre and,: therefore, they will be rotated . only in clerical posts which are in the same cadre. ·Nor do we think that the expression 'rotational transfer' means transfer from one place to another or from one .division to another but in the same post. Jn our view, the expression, in the context, can only mean transfer from one post to another and, after the member has spent some time in the post ·to which he has been. transferred, he should be brought back to the original post. This would involve an element of rotation and this is precisely what has been done in the present case, namely, that the incumbents of the posts of Wireless Licence Inspectors and Town Inspectors are being brought back to their original posts after the expiry of the period, namely, 3 years.

As we sa1id, Rule 60 only says that the posts included therein should not ordinarily be occupied by the same officials . continuously for more than the period shown against each. It does not deal with the places in }l'hich an incumbent could be rotated. The expression 'rotational transfer' has nothing to do with the right of the incumbents to hold die posts permanently. The purpose of including these posts arnonrJ the posts covered by Rule 60 was not to affect the term of employment of the Wireless Licence Inspectors and Town Inspectors, but only to provide that they can occupy the posts only for the period specified, namely, 3 ye~rs at a time. The Director General of Posts and Telegraph~ was competent to pass rule 279 /4 and it is not in any way inconsistent with the decision of the Government of India dated November 15, 1958. The iresult is that Civil Appeals Nos. 467, 713, 1421 of 1973 and 1718-1721 of 1972 have to be allow(!d and Civil Appeals Nos. 821- 823, 1792, 1793 of 1973, 366-371 of 1974 and the Writ Petitions ·have to be dismissed and we do so.

We make no order as to costs. V.P.S.