judgement:
vil Appeal No. 4115 and 4116 of 1985.
From the Judgment and Order dated 12.4.1985 of the Allahabad High Court in Civil Misc.
Writ Petn.
No. 3441 of 1984.
J.P. Goyal, Rajesh for the Appellants in C.A. No. 41 15 of 1985.
Anil Dev Singh, Mrs. section Dikshit and Sudhir Kulshreshta for the Appellants in C.A. No. 4116 of 1985.
R. Ramachandran for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
These two appeals by special leave, one pre ferred by the State of U.P. and the other by the Cane Super visors of the Cane Development Department, U.P., are direct ed against the judgment of 975 the Allahabad High Court directing the State Government to merge the posts of Ganna Gram Sewaks and Ganna Supervisors into the cadre of Ganna Sahayak in the pay scale of Rs.400 615 with effect from 1 7 1979.
In the hierarchy of field officers in the Cane Develop ment Department, U.P., the post of Ganna Gram Sewak is at the bottom.
The next higher post is the post of Cane Super visor.
Under the Cane Development (Fourth Class) Service Rules, 1972 framed under Article 309 of the Constitution of India, the posts of Ganna Gram Sewaks are filled by direct recruitment and the minimum qualification prescribed there for by Rule 9(3) of the said Rules is that a candidate for recruitment in the post of Ganna Gram Sewak must have passed the High School Examination from the Board of High Schools and Intermediate Education, U.P. or an equivalent examina tion and he must know Hindi in Devnagri script.
Under the Uttar Pradesh Ganna Paryavekshak (III) Service Rules, 1978, also framed under Article 309 of the Constitution of India, 50 per cent of the posts of Cane Supervisors are to be filled by direct recruitment and the remaining 50 per cent by promotion on the basis of seniority from amongst perma nent Ganna Gram Sewaks of the concerned region.
The basic qualification for the post of Cane Supervisor is Intermedi ate (Agriculture) or equivalent or High School with two years Diploma in Agriculture.
The duties that are to be performed by the Ganna Gram Sewaks are preparation of progress report, survey of the cane areas and development programmes.
The Cane Supervisors are responsible for plant protection, inputs godown and nurseries in the areas of Ganna Gram Sewaks.
The State of U.P. appointed a Second Pay Commission in the year 1979.
The Ganna Gram Sewaks submitted a representa tion to the Commission demanding that since their qualifica tions were similar to those of Cane Supervisors and they performed the same kind of duties, they should get the same pay scale as that of the Cane Supervisors.
It appears that on the suggestion of the Pay Commission, the State Govern ment appointed a Task Force Committee.
The Task Force Com mittee in its report recommended the merger of the posts of Ganna Gram Sewaks and Cane Supervisors into one group to be designated as Ganna Sahayaks and allotted an equal field of operation.
It was observed that the merger being effected would satisfy the demand of the Ganna Gram Sewaks for the equalisation of their pay scale with that of the Cane Super visors.
The said recommendation was made by the Task Force Committee on the ground that there was no special difference between these two categories of posts in regard to 976 the duties performed by the members of each category.
The Second Pay Commission, however, did not accept the recommen dation made by the Task Force Committee for the merger of these two categories of posts .into one category, namely, Ganna Sahayak.
After taking into consideration the minimum academic qualification and the nature of duties for each category, the Second Pay Commission, inter alia, recommended the revision of the pay scales as follows: CANE DEVELOPMENT DEPARTMENT section No. Name of Post Pay Scale Existing Proposed 46.
Cane Supervisor/ 230 385 400 615 Seed Asstt.
Ordinary Ordinary Grade Grade 250 425 510 675 (Selection After Grade) After 10 years of service Selection Grade ( 15% Selection Grade on the post of Supervisor) 47.
Ganna Gram Sewak 185 265 325 495 Ordinary Ordinary Grade Grade 200 320 400 540 Selection After 15 years Grade of service Selection Grade on 15% posts.
The recommendation of the Second Pay Commission was considered by the Review Committee and, thereafter, by the Cabinet Sub Committee.
There is a dispute between the par ties as to whether the Cabinet Sub Committee had accepted the recommendation made by the Task Force Committee.
Be that as it may, the State Govern 977 ment accepted the recommendations of the Second Pay Commis sion only with a slight modification that instead of a pay scale of Rs.325 495 for Ganna Gram Sewaks, it would be Rs.330 495.
One of the Ganna Gram Sewaks, Shri Vyas Muni Mishra, the respondent No. 1, filed a writ petition before the Allahabad High Court praying for a writ of mandamus directing the State Government to merge the posts of Ganna Gram Sewaks and Cane Supervisors into one cadre of 'Ganna Sahayak '.
The High Court took the view that although the minimum educational qualifications required were High School for Ganna Gram Sewaks and Intermediate in Agriculture for Cane Supervisors, since 1975 the minimum qualification for both Ganna Gram Sewaks and Cane Supervisors became Intermediate in Agricul ture.
Further, the High Court was of the view that the nature of duties performed by the members of these two categories of posts was the same.
Accordingly, relying upon the principle of equal pay for equal work, as contained in Article 39(d) of the Constitution, the High Court allowed the writ petition and directed the State Government to merge the posts of Ganna Gram Sewak and that of Cane Supervisor into one post as Ganna Sahayak in the pay scale of Rs.400 615 with effect from July 1, 1979.
The State of U.P. and the Cane Supervisors being aggrieved by the judgment of the High Court have preferred the above appeals.
At the outset it may be said that the High Court exceed ed its jurisdiction in directing the merger of the two posts.
It may be that the Task Force Committee and the Review Committee had recommended for the merger, but it was for the State Government to consider whether such merger should be made or not.
The State Government after considera tion of the relevant reports and recommendations accepted the recommendation of the Second Pay Commission only with regard to the revision of the pay scale of the Ganna Gram Sewaks with the slight modification by an increase of Rs. 5 at the initial stage of the recommended pay scale.
The question whether two posts should be merged into one or not is absolutely within the jurisdiction and authority of the Executive Government.
However much the High Court was influ enced by the principle of equal pay for equal work for both men and women as contained in Article 39(d) of the Constitu tion, the High Court was not justified in exceeding its jurisdiction for giving effect to the said doctrine.
The principle of equal pay for equal work requires on the face of it that the work to be performed by two groups of persons must be 978 equal.
It has been already noticed that the duties that had to be performed by the Ganna Gram Sewaks are preparation of progress report, survey of the cane areas and development programmes.
On the other hand, the Cane Supervisors are responsible for plant protection, inputs godown and nurser ies in the areas of Ganna Gram Sewaks.
Thus the nature of duties that are performed by the members of these two cate gories of posts is different.
It has been observed by the Second Pay Commission that the Department has so fixed the duties of the two functionaries that both of them now func tion more or less independently.
The High Court did not discuss in detail as to whether the Ganna Gram Sewaks and the Cane Supervisors perform the same duties.
The High Court has only referred to an observation in the report of the Task Force Committee that there were not much differences in the duties performed by these two categories of officers.
As has been stated already, the Second Pay Commission did not accept the recommendation of the Task Force Committee for the merger of the two posts into one.
It is true that the Cane Supervisors are not doing any supervision of the work of the Ganna Gram Sewaks, but in view of the nature of duties performed by both, as mentioned above, it is diffi cult to hold that both perform the same kind of duties.
We have also looked into the reports of the Task Force Commit tee and the Review Committee.
In our opinion, these two Committees have not properly dealt with the nature of duties performed by the Ganna Gram Sewaks and Cane Supervisors, although both these Committees have recommended the merger of the two posts.
As soon as, therefore, it is held that the two groups of persons do not perform the same kind of du ties, the question of equal pay for equal work does not arise.
In directing merger of the two posts, the High Court has greatly relied upon the fact that although the minimum educational qualification for Ganna Gram Sewaks was High School, since 1975 the minimum educational qualification for the Ganna Gram Sewaks has been Intermediate in Agriculture.
In other words, according to the High Court the minimum educational qualification required for both these posts is Intermediate in Agriculture.
We have already referred to the Rules framed under Article 309 of the Constitution under which the minimum qualification for the posts of Ganna Gram Sewaks has been prescribed as High School or equivalent examination and for the Cane Supervisors as Intermediate (Agriculture) or equivalent or High School with two years ' Diploma in Agriculture.
The minimum qualifications, as prescribed, have not yet been changed by the amendment of the said Rules.
In entertaining the view that the minimum qualification for the Ganna Gram Sewaks has been since 1975 Intermediate in 979 Agriculture, the High Court has placed reliance upon a letter dated March 10, 1975 addressed by the Cane Commis sioner, U.P,, to the Deputy Secretary, Cane Development Department, Government of U.P.
In that letter, it was recom mended that the minimum educational qualification for the Ganna Gram Sewaks should be Intermediate in accordance with the proposal of the Ganna Gram Sewaks ' Union, U.P.
It was, accordingly, requested by the Cane Commissioner in the said letter that the Government might consider the minimum quali fication as recommended.
It is the case of the State of U.P. that the said letter was issued in connection with 600 new posts of Ganna Gram Sewaks to be created under non statutory bodies, namely, Sakkar Nidhi and Ganna Board.
It is contend ed that these 600 posts have nothing to do with the posts of Ganna Gram Sewaks under the Cane Development Department of the State of U.P.
In our opinion, the High Court should not have placed any reliance upon any such recommendation made by the Cane Commissioner, when, under the Rules framed under Article 309 of the Constitution, the minimum qualification required for the Ganna Gram Sewaks is High School or equiva lent.
So long as the Rules are amended and the minimum qualification is not enhanced to Intermediate in Agricul ture, the Cane Development Department of the Government cannot prescribe or insist on a minimum qualification of Intermediate in Agriculture.
The Second Pay Commission could not also equate the posts of Ganna Gram Sewaks with that of Cane Supervisors on the ground that the minimum qualifica tion for the two posts are different.
The High Court was, therefore.
not justified in relying upon the said letter of the Cane Commissioner in preference to the Rules framed under Article 309 of the Constitution.
In our view, there fore, not only the nature of duties attached to each post is different, but also the minimum qualification required for each post is also different.
As stated earlier, the posts of Ganna Gram Sewaks are filled by direct recruitment.
So far as .the posts of Cane Supervisors are concerned, 50 per cent of the same are filled by promotion from the posts of Ganna Gram Sewaks and the remaining 50 per cent are filled by direct recruitment.
Thus, the post of Cane Supervisor is a promotional post vis a vis the post of Ganna Gram Sewak.
In our view where, as in the instant case, of the two posts, one being the promotional post and the other being the feeder post, it will be beyond the jurisdiction of the Court to implement the principle of equal pay for equal work inasmuch as such implementation will practically result in the amalgmation of the two posts leading to great administrative difficulties.
Article 39(d) of the Constitution lays down the Directive Principle of 980 equal pay for equal work for both men and women.
The direc tive principles contained in Part IV of the Constitution are not enforceable in any court of law.
It is a constitutional goal that has to be achieved at the instance of the State.
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 kind of duties or not and whether in implementing the directive principle, as contained in Article 39(d) of the Constitution, it is neces sary 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 situ ated, equally.
In the facts and circumstances of the instant case, we are of the view that the High Court was not justi fied in directing a merger of the two posts, namely, the posts of Ganna Gram Sewaks and Cane Supervisors.
For the reasons aforesaid, the impugned judgment of the High Court is set aside and the writ petition is dismissed.
Both these appeals are allowed.
There is, however, no order as to costs.
This judgment, however, will not prevent the State of U.P. from considering the merger of these two posts and the consequent equalisation of pay.
P.S.S, Appeals allowed.

summary/full:
The U.P. Cane Development (Fourth Class) Service Rules, 1972 prescribe minimum qualification of High School Examina tion for the post of Ganna Gram Sewak.
The U.P. Ganna Parya vekshak (III) Services Rules, 1972 lay down the basic quali fication of Intermediate (Agriculture) or equivalent or High School with two years ' Diploma in Agriculture for the post of Cane Supervisor, and provide for filling 50 per cent of these posts by promotion from amongst permanent Ganna Gram Sewaks.
The Cane Commissioner by his letter dated March 10, 1975 recommended to the State Government that the minimum educational qualification for Ganna Gram Sewaks should be Intermediate.
No amendment, however, has been made to the said Rules.
The duties that are to be performed by the Ganna Gram Sewaks are preparation of progress report, survey of cane areas, and development programme.
The Cane Supervisors are responsible for plant protection, inputs godown and nurser ies in the areas of Ganna Gram Sewaks.
The respondent No. 1 flied a writ petition under article 226 of the 973 Constitution praying for a writ of mandamus directing the State Government to merge the post of Ganna Gram Sewaks and the Cane Supervisors into one cadre.
The High Court took the view that although the minimum educational qualifications required were High School for Ganna Gram Sewaks and Intermediate in Agriculture for Cane Supervisors, since 1975 the minimum qualification became Intermediate in Agriculture for both Ganna Gram Sewaks and Cane Supervisors, that the nature of duties performed by the members of these two categories of posts was the same, and relying upon the principle of equal pay for equal work, as contained in article 39(d) of the Constitution, allowed the writ petition and directed the State Government to merge the said posts into one cadre of Ganna Sahayak.
The State, and the Cane Supervisors preferred appeals to this Court.
Allowing the appeals, HELD: 1.1 The High Court exceeded its jurisdiction in directing the merger of the posts of Ganna Gram Sewaks and Cane Supervisors.
[977E] 1.2 The merger or bifurcation of a cadre is an executive act.
It is for the State to consider whether two groups of persons working under two distinct posts perform the same 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 the two posts into one cadre or post.
[980AB] 1.3 The principle of equal pay for equal work requires on the face of it that the work to be performed by two groups of persons must be equal.
The Court may in such cases direct equal pay by way of removing unreasonable discrimina tion and treating the two groups, similarly situated, equal ly.
[977H; 980CD] In the instant case, the nature of the duties that are performed by the members of the two categories of posts are different.
The Ganna Gram Sewaks are responsible for prepa ration of progress report, survey of.
the cane areas and development programme.
On the other hand Cane Supervisors are responsible for plant protection, inputs godown and nurseries in the areas of Ganna Gram Sewaks.
The 974 minimum qualification required for each post is also differ ent.
Both of them function more or less independently.
Furthermore, the post of Cane Supervisor is a promotional post vis a vis the post of Ganna Gram Sewak.
It will, there fore, be beyond the jurisdiction of the court to implement the principle of equal pay for equal work inasmuch as such implementation will practically result in the amalgamation of the two posts.
[978A, 979EF, 978B, 979G] 2.
Under the Rules the minimum qualification required for the Ganna Gram Sewaks is High School or equivalent.
So long as the Rules are amended and the minimum qualification is not enhanced to Intermediate in Agriculture, the Cane Development Department of the State cannot prescribe or insist on a minimum qualification of Intermediate in Agri culture.
The High Court, therefore, was not justified in relying upon the letter of the Cane Commissioner dated March 10, 1975 in preference to the Rules framed ' under Article 309 of the Constitution for taking the view that the minimum qualification for that post has been Intermediate in Agri culture since 1975.
[879CE, 978H] 3.
Article 39(d) of the Constitution lays down the directive principle of equal pay for equal work for both men and women.
The directive principles contained in Part IV of the Constitution are not enforceable in any court of law.
It is a constitutional goal that has to be achieved at the instance of the State.
[979H 980A]


judgement:
Civil Appeal No. 10539 of 1983.
From the Judgment and Order dated 22.8.1983 of the A.P. Administrative Tribunal at Hyderabad in Representation Petition.
1899 and 1950 of 1982.
A. Subba Rao for the Appellant.
1013 P.P. Rao, K. Ram Kumar, Vimal Dave, C. Markendeya and Gururaja Rao for the Respondents.
The following Judgment of the Court was delivered: This appeal by special leave is directed against the order of the Andhra Pradesh Administrative Tribunal, Hydera bad, holding that the appellant was appointed to the post of Sub Inspector of.
Police (Civil) as a direct recruit and directing that he shall be accorded seniority from the date when he joined the post on such appointment.
On December 30, 1968, the appellant, who was then an undergraduate, was appointed to the post of Reserve Sub Inspector of Police.
During his service in that post, he passed the B.A. Examination of the Osmania University in April 197 1.
Pursuant to an advertisement in the local newspaper inviting applications for the posts of SubInspec tor of Police (Civil), the appellant applied for the post and appeared in the written test and viva voce test.
He was selected and appointed to the post on December 14, 1976 on probation for two years along with thirtyseven others.
After the completion of his probationary period, he was confirmed in the post on November 29, 1978.
It appears that the Inspector General of Police did not accede to the request of the appellant to take into account the period of his service as Reserve Sub Inspector of Police in computing his seniority in the new post of Sub inspector of Police (Civil).
Thereafter, the appellant made a repre sentation to the Government.
The Government in its order being GOMS No. 344 dated June 11, 1982, took the view that the entire period of service of the appellant as Reserve SubInspector of Police should be counted under Rule 15(c) of the Andhra Pradesh Police Subordinate Service Rules and directed that the appellant would be accorded seniority from the date of his first appointment to the post of Reserve Sub Inspector of Police, that is.
from December 30, 1968, placing him below Shri Khaja Mohiuddin and above Shri S.K. Ahmed in the list of Sub Inspectors of Police (Civil).
It was further directed that "this order shall, however.
not become, a precedent for others.
" Being aggrieved by the said Government order, a number of Sub Inspectors of Police (Civil) filed three sets of applications to the Andhra Pradesh Administrative Tribunal under paragraph 7 of the Andhra Pradesh Administrative Tribunal order, 1975 challenging the validity of the said Government order and praying for setting aside of 1014 the same.
The Tribunal by the impugned order struck down the said Government order and directed that the appellant would be accorded seniority from the date when he joined the post of Sub Inspector of Police (Civil) treating him as a direct recruit.
Further, it was directed that the promotional benefits given to the appellant would be regulated on and from the date he joined the said post of Sub Inspector of Police (Civil).
Hence this appeal by special leave.
The principal question that is involved in this appeal is whether the appellant was appointed to the post of Sub Inspector of Police (Civil) as a direct recruit or was recruited in that post by transfer or was simply transferred to that post from the post of Reserve SubInspector of Police following his selection as a direct recruit.
In the impugned Government order, the Government took the view that the appellant was transferred from the post of Reserve SubInspector of Police to that of Sub Inspector of Police (Civil) under Rule 15(c) of the Andhra Pradesh Police Subordinate Service Rules.
Rule 15(c) is as follows: "Rule 15(c).
The transfer of a person from one class or category of the service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was trans ferred.
Where any difficulty or doubt arises in applying this sub rule, seniority shall be determined by the appointing authority.
" The Tribunal has taken the view that appointment of the appellant to the post of Sub Inspector of Police (Civil) was not by way of transfer under Rule 15(c), nor was it by way of recruitment by transfer.
It has been pointed out by the Tribunal, and that rightly, that Annexure I read with Rule 2(a) of Andhra Pradesh Police Subordinate Service Rules provides for two modes of appointment which are: (1) by promotion, and (2) by direct recruitment or recruitment by transfer from any other service.
It is not disputed that Sub Inspectors of Police (Civil) and 1015 Reserve Sub Inspectors of Police both belong to Andhra Pradesh Police Subordinate Service.
Recruitment by transfer can only be made from "any other service.
" As both the posts of Sub Inspectors of Police (Civil) and Reserve Sub Inspec tors of Police are under the same Service, the question of recruitment in the post of Sub Inspector of Police (Civil) by transfer from the post or Reserve Sub Inspector of Police does not arise.
Mr. Subba Rao, learned Counsel appearing on behalf of the appellant, has not made any attempt to sub stantiate that the appellant 's appointment to the post of Sub Inspector of Police (Civil) was by way of recruitment by transfer.
We are, therefore, left with the question whether the appellant 's appointment was by way of direct recruitment or it was really a case of transfer of the appellant from the post of Reserve Sub Inspector of Police to that of SubInspector of Police (Civil).
While it is strenuously urged on behalf 01 ' the appellant that he was transferred from the post of Reserve SubInspector of Police to the post of Sub Inspector of Police (Civil) under Rule 15(c) of the Andhra Pradesh Police Subordinate Service Rules, it is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf of the respondents, that the appellant was directly recruited to the post of Sub Inspector of Police (Civil).
It has been already noticed that the appellant applied for the post of Sub Inspector of Police (Civil) pursuant to an advertisement in the newspapers issued by the Police department inviting applications for appointment to the said post by direct recruitment in the pay scale of Rs. 150 300.
The minimum academic qualification required for the post was graduation.
The vacancies to be filled up were 149 in num ber.
The appellant succeeded in the preliminary interview and he was directed to appear at the written test.
Thereaf ter, he was also called upon to appear at the final inter view before the Selection Board on February 25, 1976 and was asked to bring with him original certificates, evidence of his date of birth, school/college conduct certificate, no objection certificate in original, if he was a Government Servant, etc.
In other words, the appellant had to undergo the entire procedure prescribed for selection of direct recruits.
It has also been noticed earlier that the appel lant was appointed on probation for two years and after the satisfactory completion of his probationary period, he was confirmed in the post of Sub Inspector of Police (Civil).
In view of the manner in which the appellant was appointed to the post of SubInspector of Police (Civil), it is difficult to accept any contention that the appellant was transferred to that post.
When a Government servant in transferred from one post to another, the question of his selection after a written and a viva voce test does not at all arise.
If the 1016 appellant had been transferred simpliciter, the appellant would not have been directed to appear at the written test and the interview for the purpose of selection along with other candidates.
who also applied for the posts of Sub Inspector of Police (Civil) pursuant to the said advertise ment in the local newspaper.
It is not disputed that the said advertisement was published for filling up the posts of Sub Inspectors of Police (Civil) by direct recruitment.
We are, therefore, unable to accept the contention made on behalf of the appellant that it was a case of transfer and not of direct recruitment.
It is true that the Government has power to transfer under Rule 15(c) of the Andhra Pradesh Subordinate Police Service Rules.
The question, however, it whether the Government intended to transfer the appellant from the post of Reserve Sub Inspector of Police to that of Sub Inspector of Police (Civil).
It has been rightly pointed out that such transfer can be made only in the public interest, but there was no question of any public interest so far as the appellant was concerned.
Indeed, in the impugned Government order, it was directed that the same would not be treated as a precedent.
If the appellant 's appointment to the post of Sub Inspector of Police (Civil) was by way of transfer in exercise of the power under Rule 15(c), there was no necessity for a direc tion that the order would not be treated as a precedent for others.
The impugned order was not made by the Government out of its own, but on the representation of the appellant which was made after the appellant 's request to take into account his period of service at the Reserve Sub Inspector of Police in computing his seniority in the post of Sub Inspector of Police (Civil) was turned down by the Inspector General of Police.
In support of the case for transfer, the appellant has strongly relied upon two facts, namely, (1) that he did not submit any resignation from the post of Reserve Sub Inspec tor of Police; and (2) that he was allowed to draw last pay as Reserve Sub Inspector of Police even on his appointment as the Sub Inspector of Police (Civil).
These two facts have also been relied upon by the Government in the impugned order.
These two circumstances are no doubt the criteria of a transfer, but merely because of the presence of these circumstances, it will not justify a finding that the appel lant was transferred, as contended by him, having regard to the manner in which the appellant was appointed to the post of Sub Inspector of Police (Civil).
Although a Government servant can be transferred from one post to another, but when he chooses to get himself recruited to that another post after subjecting himself to all requirements and for malities of direct recruit 1017 ment along with other independent candidates and is con firmed after satisfactory completion of the probationary period, his appointment as a direct recruit cannot be sub stituted by an order of transfer to the prejudice of the other direct recruits in the matter of computation of sen iority.
It may be that the appellant had not resigned from the post of Reserve Sub Inspector of Police, and that the Government allowed him the last pay drawn as Reserve Sub Inspector of Police on his appointment as Sub Inspector of Police (Civil), that would not, in our opinion, wipe out the appointment of the appellant as a direct recruit.
The Tribu nal, in our view, is perfectly justified in holding that the appellant was directly recruited to the post of Sub Inspec tor of Police (Civil), and that his seniority should be computed from the date of such appointment.
For the reasons aforesaid, the appeal is dismissed.
There will, however, be no order as to costs.
We, however, make it clear that this judgment will not affect the present position of the appellant and the emolu ments which are being paid to him.
S.L. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
On December 30, 1968, the appellant, then an under graduate, was appointed to the post of Reserve Sub Inspector of Police.
During his service in that pest, he passed the B.A. Examination in April, 1971, whereafter he applied for the post of Sub Inspector of Police (Civil) pursuant to an advertisement in the newspaper.
He was selected and appoint ed to the pest of Sub Inspector on December 14, 1976, on probation for two years along with thirty seven others, and was confirmed in the post on November 29, 1978.
The appellant made a representation to the Government that the period of his service as Reserve Sub Inspector of Police should be taken into account in computing his senior ity in the new post of Sub Inspector of Police (Civil).
The Government by its order dated June 11, 1982, took the view that the entire period of service of the appellant as Re serve Sub Inspector of Police should be counted under Rule 15(c) of the Andhra Pradesh Police Subordinate Service Rules, and directed inter alia that the appellant would be accorded seniority from the date of his first appointment to the post of Reserve Sub Inspector of Police, that is, from December 30, 1968, and further that the order would not become a precedent for others.
Aggrieved by the above said Government order, a number of Sub Inspectors of Police (Civil) moved the Andhra Pradesh Administrative Tribunal under paragraph 7 of the Andhra Pradesh Administrative Tribunal Order, 1975, challenging the validity of the said Government Order.
The Tribunal passed an order, striking down the Government order in question and directing (i) that the appellant would be accorded seniority from the date when he joined the post of the SubInspector, of Police (Civil), treating him as a direct recruit, and (ii) that the promotional benefits given to the appellant would be regulated on 1011 and from the date he joined the said post of Sub Inspector of Police (Civil).
The appellant appealed to this Court by special leave against the order of the Tribunal above said.
Dismissing the appeal, the Court, HELD: The principal question that was involved in the case was whether the appellant was appointed to the post of Sub Inspector of Police (Civil) as a direct recruit or was recruited in that post by transfer or was simply transferred to that post from the post of Reserve Sub Inspector of Police following his selection as a direct recruit.
[1014B C] The Tribunal took the view that the appointment of the appellant to the post of Sub Inspector of Police (Civil) was not by way of transfer under Rule 15(c), nor was it by way of recruitment by transfer; it was pointed out by the Tribu nal, and rightly; that Annexure I read with Rule 2(a) of the Andhra Pradesh Police Subordinate Service Rules provided for two modes of appointment, viz., (1) by promotion, and (2) by direct recruitment or recruitment by transfer from any other service.
[1014F H] The Sub Inspectors of Police (Civil) and the Reserve SubInspectors of Police both belonged to the Andhra Pradesh Police Subordinate Service.
Recruitment by transfer could only be made from "any other service".
As both the said posts were under the same service, the question of recruit ment in the post of Sub Inspector of Police (Civil) by transfer from the post of Reserve Sub Inspector of Police did not arise.
Therefore, the only question left before the Court was whether the appellant 's appointment was by way of direct recruitment or it was really a case of transfer from the post of Reserve Sub Inspector of Police to that of Sub Inspector of Police (Civil).
[1014H, 1015A C] The appellant had applied for the post of Sub Inspector of Police (Civil) pursuant to an advertisement in the news papers, issued by the Police Department, inviting applica tions for appointment to the said post by direct recruit ment.
The appellant had to undergo the entire procedure (like, preliminary interview, written test, final interview, production of certificates, etc) for selection of direct recruits.
Also, he was appointed on probation and after the satisfactory completion of his probationary period, he was confirmed in the post of Sub Inspector of Police (Civil).
In view of the manner in which the appellant was appointed to the post of Sub Inspector of Police (Civil), it was diffi cult 1012 to accept any contention that the appellant was transferred to that.
When a Government servant is transferred from one post to another, the question of his selection after a written test and a viva voce test does not arise.
If the appellant had been transferred simpliciter, he would not have been directed to appear at the written test and inter view for selection along with other candidates who had applied for the post of Sub Inspector of Police (Civil) pursuant to the advertisement in the newspaper.
The Court was, therefore, unable to accept the contention that the appellant 's was a case of transfer and not of direct re cruitment.
It was true that the Government had the power to transfer under Rule 15(c) of the Andhra Pradesh Subordinate Police Service Rules, but such a transfer could be made only in public interest, and there was no question of any public interest so far as the appellant was concerned.
The Govern ment had directed in its order that order would not be treated as a precedent; there was no necessity for this direction if the appellant 's appointment to the post of Sub Inspector of Police (Civil) was by way of transfer in exercise of power under Rule 15(c).
The Government order impugned had not been made by the Government out of its own but on the representation of the appellant.
[1015D H, 1016A B] The appellant contended that he did not submit any resignation from the post of Reserve Sub Inspector of Police and that he was allowed to draw last pay as Reserve Sub Inspector even on his appointment as the Sub Inspector of Police (Civil), but merely because of the presence of these circumstances, it would not justify a finding that the appellant had been transferred, having regard to the manner in which he came to be appointed to the post of Sub Inspec tor of Police (Civil).
[1016F G] The Tribunal was perfectly justified in holding that the appellant was directly recruited to the post of Sub Inspec tor of Police (Civil) and that his seniority should be computed from the date of such appointment.
This judgment, however, would not affect the present position of the appel lant and the emoluments being paid to him.
[1017B D]


judgement:
pecial Leave Petitions (Civil) Nos.
5678 79 of 1987.
990 From the Judgment and Order dated 8.4.1987 of the Cal cutta High Court in F.M.A.T. Nos. 2256 and 1350 of 1986.
S.R. Srivastava for the Petitioners.
Tapas Ray, Somnath Chatterjee, Sushil Kumar Jain, B.P. Singh and A. Misra for the Respondents.
The Order of the Court was delivered by SEN, J.
These special leave petitions are directed against a judgment and order of a Division Bench of the High Court of Calcutta dated April 8. 1987 upholding the judgment and order of a learned Single Judge dated July 17, 1986 dismissing the petition filed by the petitioners under article 226 of the Constitution.
By the writ petition the petition ers had challenged the legality and propriety of the grant of licence by the Calcutta Municipal Corporation of the subsoil of Satyanarayan Park to respondent No. 14 Messrs Happy Homes & Hotels Private Limited for a period of 30 years for the implementation of a development scheme, name ly, construction of a two storeyed airconditioned under ground basement market and parking place on mani fold grounds inter alia that the construction of the said under ground market would affect the ecological balance because the park was situate in a densely populated area like Burra bazar in the Metropolitan City of Calcutta, that the con struction would effect traffic jams in or about the said area leading to a further ecological imbalance and that the Corporation had no authority to grant the licence of the subsoil of the park for the implementation of any develop ment scheme which was not for the development of the park by way of a proper and adequate or proper utilisation of such park.
In a considered judgment, the learned Single Judge (Umesh .Chandra Banerjee, J.) repelled the contentions advanced on behalf of the petitioners.
He considered the questions in depth and held that the grant of licence of the subsoil of Satyanarayan Park for construction of the under ground market would not destroy its intrinsic character as a park and the implementation of the development scheme by the Municipal Corporation was a bona fide exercise of its statu tory powers.
The contention regarding ecological imbalance has been negatived by the learned Single Judge as being based on an erroneous assumption of facts, observing: "The contention of ecological imbalance, in my view, is wholly on an erroneous assumption of facts.
It is not that there will be no Park as such a Park would be there, the 991 children 's playground would be there and all the other amenities which a modern Park en joins would be provided for.
The difference being whereas the existing one is on the ground level, after the completion of the project the park will be on an elevated level.
Incidentally, it is to be recorded that Satya Narayan Park for about a decade is in a de plorable state and excepting there being some tall trees, there was no maintenance of the park as a park by the Corporation Authorities.
The contention that greenery would be lost in the Park cannot also be accepted.
There was not a blade of grass on the Park.
The impor tance of a green spot in a highly congested area like Burrabazar cannot be disputed but the continuation of the project would not, in the facts and circumstances of the case and as appear from record affect such a green spot.
On the contrary, it would ensure the creation of such a green belt.
" Agreeing with the learned Single Judge, a Division Bench (Chittatosh Mookerjee, CJ and Amarendra Chandra Sen Gupta, J.) dismissed the appeal preferred by the petitioners.
According to the learned Judges, there were no allegations of mala fides and there was no doubt whatever that the Municipal Corporation acted in bona fide exercise of its statutory powers under the Act to grant the licence of the subsoil of Satyanarayan Park for the construction of the underground market and therefore the Court ought not to strike down the action of the Municipal Corporation as ultra vires under section 353(2) of the Calcutta Municipal Corporation Act, 1980.
They further held that they were unable to sub scribe to the restricted construction placed on behalf of the petitioners that the expression 'development work ' in section 353(2) read with the Explanation thereto can only mean development work either underground or on the surface of the park qua development of the park i.e. for the development and improvement by way of proper and adequate or better utilisation of any such park.
In these petitions, two questions mainly arise, namely: (1) Whether the grant of licence by deed of licence dated February 15, 1985 by the Municipal Corporation in favour of respondent No. 14 Messrs Happy Homes & Hotels Private Limit ed of the subsoil of Satyanarayan Park in the Burrabazar area of the Metropolitan City of 992 Calcutta for implementation of a development scheme, namely, to build and construct a two storeyed underground aircondi tioned basement market, and to hold the said market for a period of 30 years from the date of execution of the deed on payment of a premium of Rs.30 lakhs and a licence fee of Rs.40,000 per month on condition that the licensee shall at its own cost relocate and maintain the park on the top of the said market for augmenting and improving amenities to the citizens which shall always remain as a public park belonging to the Municipal Corporation, was in breach of its statutory powers under sub section
(2) of section 353 read with the Explanation thereto of the Calcutta Municipal Corporation Act, 1980.
(2) Should the expression 'development work ' in section 353(2) of the Act read with the Explanation thereto be construed to mean development work qua the park i.e. such development work must be confined to the proper and better utilisation of the park? Shri Shanti Bhushan, learned counsel for the petitioners assails the action of the Municipal Corporation substantial ly on two grounds: (1) The Municipal Corporation has no power to alienate or part with possession of any public street, park, square or garden or the subsoil thereof for the purpose of implementation of any development work.
The Corporation being a creature of the statute must function within the four confines of the Act creating it and in the absence of any provision for the conferral of such a power, it had no authority to grant a licence of the subsoil of Satyanarayan Park for the purpose of construction of the underground market.
(2) On a true construction of sub s.(2) of section 353 read with Explanation thereto the development work either underground or on the surface of a public street, park, square or garden must be for development and improve ment by way of proper and adequate or better utilisation of any such public street, park, square or garden.
The learned counsel placed reliance on the decision in Attorney General vs Corporation of Sunderland LR, [187576] for the submission that the position of the Municipal Corpora tion in regard to public parks, gardens, squares and streets under the Act was that of a trustee and the Corporation would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the Act.
In reply Shri Somnath Chatterjee, learned counsel ap pearing for respondent No. 14 Messrs Happy Homes & Hotels Private Limited contended that the grant of licence by the Municipal Corporation of the subsoil of Satyanarayan Park was a bona fide exercise of its statutory powers and the construction of the underground market would 993 not destroy its intrinsic character as a park and there was no warrant, as the High Court has held, to give a restric tive meaning to the expression 'development work ' in section 353(2) of the Act read with the Explanation thereto.
At the hearing, the learned counsel drew our attention to the supplementary affidavit filed on behalf of his client dated July 25, 1987 showing that the structural work of the under ground market has been completed and the concrete roof has been laid.
All that remains is the laying of a park.
It appears therefrom that the value of the work done so far is Rs.2.30 crores out of the estimated cost of Rs.4.51 crores and that the underground airconditioned market is likely to be commissioned within a couple of months.
It also appears that respondent No. 14 has entered into a contract with Joshi & Associates, Architects for re development and re laying of Satyanarayan Park as a terrace ' garden.
The letter of the Agri Horticultural Society of India dated July 24, 1987 gives a detailed scheme for such re location of the park as a terrace garden with tall trees.
It provides for laying of a spacious lawn admeasuring about 12,000 square feet .with replantation of fast growing tall trees and dwarf trees, laying of shrubs etc.
The material on record clearly shows that the intrinsic character of Satyanarayan Park as a public park would not be destroyed by the construction of the underground market which with its raised height at 6 feet from the road level is to have a terrace garden with tail trees all around and it would remain a place of recrea tion.
This dispels the contention of Shri Shanti Bhushan based on Attorney General vs Corporation of Sunderland that the construction of the underground market would destroy the intrinsic character of Satyanarayan Park as a park.
Under the scheme there would be no construction on the park; the underground market would be under the park and not over the park.
The only difference is that the park would be re located at a height of 6 feet above the road level easily accessible by three separate staircases.
Under the scheme, Satyanarayan Park would become a real park with a lush green garden with tall trees, shrubs etc.
and a centre for relaxa tion of the thickly congested Burrabazar locality and in particular for the children as a playground.
It is signifi cant that the Division Bench has issued a writ of mandamus commanding the respondents to restore Satyanarayan Park as a public park as stipulated in the deed of licence dated February 15, 1985 and to maintain it as a public garden.
Shri Somnath Chatterjee has drawn our attention to the finding of the learned Single Judge that the development scheme would not create any ecological imbalance.
On the contrary, the implementation of the scheme would ensure the creation of a green belt.
It was conceded before the learned Single Judge that the terrace garden with 994 green grass would be laid on the upper basement of the underground market.
As regards the apprehension expressed by Shri Shanti Bhushan that tall trees would disappear from the park, it is enough to say that the learned Single Judge has in his judgment observed that there is no basis for this apprehension at all.
He records that as a matter of fact, replantation of tall trees has already been effected in terms of the earlier order passed by the Division Bench under the expert supervision of the Agri Horticultural Society of India.
Thus, there would be a 'patch of green ' in the thickly congested Burrabazar area which would tend to improve, rather than retard, ecological balance and there would be a place of recreation for all and in particular for the children as a playground.
In the facts and circumstances of the case, the High Court was justified in holding that the implementation of the development scheme would squarely fall within the ambit of sub s.(2) of section 353 of the Calcutta Municipal Corporation Act.
1980 and the construction of the underground market is not intended and meant to destroy the intrinsic character of Satyanarayan Park as a public park but on the contrary, the scheme is to re locate and redevel op the park as a public park as a place for public recrea tion.
We find no justification whatever to interfere with the judgment of the High Court.
Before parting with the case, we wish to mention that we impressed upon Shri Somnath Chatterjee, learned counsel for respondent No. 14 that the grant of a fully airconditioned underground market on a premium of Rs.30 lakhs and a rent of Rs.40,000 per month which was revisable at the end of every 30 years has to be altered.
It was clearly against the public interest to grant the market on a rent of Rs.40,000 per month having regard to the spiral rise of rents of commercial premises in all urban areas throughout the coun try.
We directed the parties to revise the terms and posted the case for further directions on August 12, 1987.
We are happy to record that on that day Shri Chatterjee made a statement that his client is prepared to revise the terms as to the rate of licence fee.
He filed an affidavit sworn by Ram Niranjan Kajaria, Director, Messrs Happy Homes & Hotels Private Limited giving an undertaking to the following effect: (L) Messrs Happy Homes & Hotels Private Limited shall pay licence fee Rs. 75,000 per month which shall be revisable at the end of every three years.
(2) It shall maintain the underground market in proper state of repairs and the airconditioning plant installed therein in proper workman like condition until the expiry or determination of the licence.
(3) It shall re locate and re develop Satyana rayan Park as a public park at its own expense as provided in the deed of licence dated 995 February 15, 1985 for which it has entered into a contract with AgriHorticultural Society of India, Alipore, Calcutta and it shall maintain properly the said park as a public park throughout the entire period of 30 years.
Subject to this modification, the special leave peti tions are dismissed without any order as to costs.
S.L. Petitions dis missed.

summary/full:
The petitioners filed a writ petition in the High Court, challenging the legality and propriety of the grant of a licence by the Calcutta Municipal Corporation of the sub soil of Satyanarayan Park to respondent No. 14 Messrs.
Happy Homes & Hotels Private Limited for a period of 30 years for the implementation of a development scheme, name ly, construction of a two storeyed air conditioned under ground basement market and parking place.
The High Court (Single Judge) repelled the contentions of the petitioners and dismissed the writ petition.
Against the judgment and order of the Single Judge, the petitioners preferred an appeal before the Division Bench of the High Court.
The Division Bench dismissed the appeal.
Aggrieved by the deci sion of the High Court, the petitioners filed petitions for special leave before this Court for relief.
Disposing of the petitions, the Court, HELD: In these petitions, two questions mainly arose, namely, (i) whether the grant of licence by the Municipal Corporation in favour of respondent No. 14, Messrs. Happy Homes and Hotels Pvt. Ltd., of the sub soil of Satyanarayan Park for the implementation of a development scheme, namely, to hold the said market for 30 years on payment of a premium of Rs.30 lakhs and a licence fee of Rs.40,000 per month on certain terms and conditions, was in breach of its statutory powers under sub section
(2) of section 353, read with the Explanation thereto of the Calcutta Municipal Corporation Act, 1980, and (ii) should the expression 'development work ' in section 353 (2) of the said Act, read with the Explanation thereto be con strued to mean development work qua the park, i.e., such development work must be confined to the proper and better utilisation of the park? [991G H; 992A C] 988 Counsel for the petitioners assailed the action of the Municipal Corporation substantially on two grounds briefly stated as (i) The Municipal Corporation had no power to alienate or part with possession of any public street, park, square or garden or the sub soil thereof for the purpose of implementation of any development work, etc., and (ii) On a true construction of sub section
(2) of section 353, read with the Explanation thereto, the development work either underground or on the surface of a public street, park, square or gar den, must be for development and improvement by way of proper and adequate or better utilisation of any such public street, park, etc.
[992D F] Shri Somnath Chatterjee, counsel for respondent No. 14, contended that the grant of licence by the Municipal Corpo ration of the sub soil of Satyanarayan Park was a bona fide exercise of its statutory powers, and the construction of the underground market would not destroy its intrinsic character as a park and there was no warrant to give a restrictive meaning to the expression 'development work ' in section 353(2) of the Act, read with the Explanation thereto.
He drew attention of the Court to a supplementary affidavit filed by his client, showing that the structural work of the underground market had been completed and the concrete roof had been laid, and all that remained was the laying of a park.
It appeared therefrom that the value of the work done so far was Rs.2.30 crores out of the estimated cost of Rs.4.50 crores, and the underground air conditioned market was likely to be commissioned within a couple of months, and also that the respondent No. 14 had entered into a contract with Joshi & Associates, Architects, for the re development and relaying of the Satyanarayan Park as a terrace garden; a letter of the Agri Horticultural Society of India gave a detailed scheme for such re location of the park as a ter race garden, etc.
[992H; 993A C] The material on record clearly showed that the intrinsic character of the Satyanarayan Park as public park would not be destroyed by the construction of the underground market which with its raised height at 6 feet from the road level was to have a terrace garden.
Under the scheme, there would be no construction on the park; the underground market would be under the park and not over the park, and the Satyanaray an Park would become a real park with a lush green garden, tail trees and shrubs, etc.
It was significant that the Division Bench had issued a writ of mandamus commanding the respondents to restore Satyanarayan Park as a public part as stipulated in the deed of licence and to maintain it as a public park.
The High Court (Single Judge) gave the finding that the development scheme would not create any ecological 989 imbalance, but would ensure the creation of a green belt.
There would thus be a 'patch of green ' in the thickly con gested Burrabazar area which would tend to improve the ecological balance and provide a place of recreation for all.
[993D G; 994A C] In the facts and circumstances of the case, the High Court was justified in holding that the implementation of the development scheme would squarely fall within the ambit of sub section
(2) of section 353 of the Calcutta Municipal Corpora tion Act, 1980 and the construction of the underground market was not intended and meant to destroy the intrinsic character of the Satyanarayan Park as a public park; on the contrary, the scheme was to re locate and re develop the part as a public park.
There was no justification whatever to interfere with the judgment of the High Court.
[994C D] The Court directed that the grant of a fully air condi tioned market on a premium of Rs.30 lakhs and a rent of Rs.40,000 per month, which was revisable at the end of 30 years had to be altered.
It was clearly against the public interest to grant the market on a rent of Rs.40,000 per month, having regard to the spiral rise of rents of commer cial premises in all urban areas.
The Court directed the parties to revise the terms and posted the case for further directions on August 12, 1987.
On that day, Shri Som Nath Chatterjee filed on affidavit on behalf of his client, giving an undertaking to the following effect: (1) M/s. Happy Homes & Hotels Pvt. Ltd. shall pay licence fee @Rs.75,000 per month which shall be revisable at the end of the every three years; (2) It shall maintain the underground market in proper state of affairs and the air conditioning plant therein in proper workman like condition until the expiry or determination of the licence; (3) It shall re locate and re develop Satyanarayan Park as a public park at its own expense as provided in the deed of licence for which it has entered into a contract with Agri Horticultural Society of India, and it shall maintain properly the said park as a public park throughout the entire period of 30 years.
[994E H; 995A] The Special Leave Petitions were dismissed subject to this modification.
[995B] Attorney General vs Corporation of Sunderland LR , referred to.