PRAKASH R BORKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition raised a question of the interpretation of Fundamental Rule 15 governing the service conditions of the Central Government employees. The Circumstances leading to this petition may be now stated. The petitioner had applied for the post of a Lower Division Clerk in the Directorate of Transport in the Union Territory of Goa, Daman and Diu, hereinafter referred to as "the Union Territory". By a letter dated 14th of November, 1975, the Government offered him the said post which carried a pay of Rs. 260 to begin with, in the scale of Rs. 260 rising to Rs. 400. In this offer of appointment it has been specifically mentioned that the temporary post of lower division clerk is in the Directorate of Transport. It has however, been also mentioned that the appointment carries with it the liability to serve in any part of the Union Territory and other conditions of service will be governed by the relevant rules and orders in force from time to time. The petitioner having accepted the aforesaid offer of appointment, an order of appointment dated 13th January, 1976 was issued by the director of Transport in the Union Territory.

(2.) On 5th of January, 1982, that is nearly six years after the petitioner was appointed as a Lower Division Clerk in the Directorate of Transport, an order was passed transferring him to the Directorate of Civil Supplies and Price Control. This order of 5th January, 1982 effects transfers of several persons under Fundamental Rule 15. It has been mentioned in this order that the said transfers are made in public interest. It may incidentally be mentioned that one U.P. Mangueshikar working at the relevant time in the Directorate of Civil Supplies and price Control, to which the petitioner has been transferred has been transferred to the Directorate of Transport where the petitioner was working. The said Mangueshikar is also holding the post of Lower Division Clerk. So the effect of his order is that one lower Division Clerk from the office of the Directorate of Transport has been transferred to the Directorate of Civil Supplies and Price Control while another Lower Division Clerk in the latter department has been transferred to the office of the Directorate of Transport. In other words, the petitioner and Mangueshikar have practically exchanged their posts.

(3.) The petitioner has approached this Court under Article 226 of the Constitution of India contending that the order of transfer purported to have been made under Fundamental Rule 15 is illegal and such a transfer cannot be made under Fundamental Rule 15. The petitioner has also contended that if Fundamental Rule 15 is interpreted to mean that the Government has got power to transfer a person from one cadre to another, then it contravenes the provisions contained in Article 311 of the Constitution. Such an interpretation should be avoided so that the rule itself is retained as a valid rule. We have heard Mr. Kakodkar, the learned Advocate appearing in support of the petition, and Mr. Mulgaonkar appearing for the Government. After doing so, we do not think it necessary to decide the question as to whether Fundamental Rule 15 should be read down for the purpose of upholding its validity. We are of the opinion that the rule as it stands does not permit the transfer of Government servant from one cadre to another.