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1989 Supreme(Cal) 310
IN THE HIGH COURT AT CALCUTTA
Kalyanmoy Ganguly, J.
Secretary, West Bengal Junior Land Reforms Officers’ Association & Ors.
vs.
State of West Bengal & Ors.
CONSTITUTIONAL WRIT JURISDICTION C.O. No. 11095 (W) of 1968
Decided On : June 21, 1989
Advocate Appeared:
Saktinath Mukherjee, Partha Sarathi Sengupta, Tridib Sarkar, R.N. Das, Ram Krishna Chandra, Sahabuddin Sarkar for petitioners;
N.N. Gooptu, Advocate General, Arun Kr, Motilal, Senior Government Advocate Tarun Roy, A.K. Basu Choudhury for the State Respondents.
A Government servant cannot be transferred out of his cadre without his consent, as this would violate his legal rights.
Headnote:
JUNIOR LAND REFORMS OFFICERS - INTEGRATED LAND REFORMS SCHEME - TRANSFER TO REVENUE OFFICER POST - VALIDITY - WEST BENGAL SUBORDINATE LAND REVENUE SERVICE (GRADE-I) - CREATION OF REVENUE OFFICER POST - WHETHER JUNIOR LAND REFORMS OFFICERS SHUNTED OUT OF CADRE - LEGALITY.
Fact of the Case:
The petitioners, Junior Land Reforms Officers, challenged two notifications dated 21st July 1988 and 18th February 1989, issued by the State Government, which sought to transfer them to the newly created post of 'Revenue Officers' under an integrated land reforms scheme. The petitioners contended that such transfer amounted to shunting them out of their cadre without their consent, which was illegal. The State Government argued that the creation of the Revenue Officer posts was part of a larger scheme to streamline land reforms administration and that the Junior Land Reforms Officers would continue to enjoy the same benefits and status as before.
Finding of the Court:
The Court held that the impugned notifications were illegal and quashed them. It found that the creation of the Revenue Officer posts did not form a part of the West Bengal Subordinate Land Revenue Service (Grade-I), in which the petitioners were serving, and that the transfer of the petitioners to these posts would amount to transferring them out of their cadre without their consent. The Court also found that the assurance of equivalence of pay, rank, and status provided in the recruitment rules for the Revenue Officer posts was not sufficient to establish that the posts were equivalent to the posts of Junior Land Reforms Officers, as the powers, functions, and responsibilities of the two posts were not the same.
Issues: 1. Whether the transfer of Junior Land Reforms Officers to the newly created post of 'Revenue Officers' amounted to shunting them out of their cadre without their consent. 2. Whether the creation of the Revenue Officer posts formed part of the West Bengal Subordinate Land Revenue Service (Grade-I), in which the petitioners were serving. 3. Whether the assurance of equivalence of pay, rank, and status provided in the recruitment rules for the Revenue Officer posts was sufficient to establish that the posts were equivalent to the posts of Junior Land Reforms Officers.
Ratio Decidendi: 1. The Court held that a Government servant cannot be transferred out of his cadre without his consent, as this would violate his legal rights. 2. The Court found that the creation of the Revenue Officer posts did not form a part of the West Bengal Subordinate Land Revenue Service (Grade-I), as the original recruitment rules for the service had not been amended to include the Revenue Officer posts. 3. The Court held that the assurance of equivalence of pay, rank, and status provided in the recruitment rules for the Revenue Officer posts was not sufficient to establish that the posts were equivalent to the posts of Junior Land Reforms Officers, as the powers, functions, and responsibilities of the two posts were not the same.
Final Decision: The Court quashed the impugned notifications and set aside the transfer of the petitioners to the post of Revenue Officers.
In this application under Article 226 of the Constitution of India two notifications being nos. 727 L. Ref. dated 21st July, 1988 being Annexure 'C' to the writ petition and 729 L. Ref. dated 21st July, 1988 being Annexure 'P' to the writ petition have been challenged.
2. The matter was hotly contested both by the petitioners and the State Government and rather longish arguments were made by both the parties.
3. The main thrust of the argument for the petitioners is that the Junior Land Reforms Officers are sought to be shunted out of their cadre without their consent and such an action on the part of the Government is devoid of any effect in law.
4. The main thrust of the argument of the respondents seems to be that such Junior Land Reforms Officers have not at all been shunted out of their cadre which the learned Advocate General in his usual fairness submits, cannot be done, but such officers are given a new nomenclature but not necessarily the designation of "Revenue Officers" under an integrated scheme of land reforms. The learned Advocate General contends with great force and more or less successfully that it is the executive flat of the Government to create, constitute or abolish any service or cadre and incumbents belonging to such service or cadre have no say in the matter.
5. Both the parties more or less agree to the basic and broad propositions of law viz., that a Government Servant cannot be transferred or shunted out of the cadre without his consent as also that the Government has unrestricted power to create, constitute or abolish any service or cadre even to the detriment of the incumbents concerned as basically Government service is not a contract but a status.
6. The main question revolves round the facts as to whether by the orders impugned in the writ petition, the petitioners have really been shunted or transferred out of their cadre of Junior Land Reforms Officers in the service known as West Bengal Subordinate Land Revenue Service (Grade-I) and as to whether the creation of the posts of 'Revenue Officers' by Government notification No. 49-L-Ref/File No. SE-50/83 dated 18th February, 1989 which is Annexure 'C' to the affidavit-in-opposition filed by the State Respondents, creates altogether a new service and/or cadre or whether it is part and parcel of the West Bengal Subordinate Land Revenue Service (Grade-I) itself.
7. The learned Advocate General takes a preliminary objection to the effect that the instant application is not maintainable, inter alia, inasmuch as some of the petitioners in this writ application have also moved previously a writ application which is pending decision in this court in C.R. No. 3744(W) of 1985 in which the similar scheme has already been challenged and there cannot be two rules against the similar schemes obtained by substantially the same petitioners and in such a case the subsequent writ petition would be hit by the principle analogues to s. 10 of the Code of Civil Procedure. The learned Advocate General further argues that in such cases there is always an apprehension of conflicting decisions leading to judicial anarchy and chaos. The learned Advocate General further submits that as the notifications impugned in the present writ petition were issued pursuant to the leave granted by the Court in Civil Rule No. 3744(W) of 1985, the same cannot be challenged.
8. It may be noted here that when the earlier rule being C.R. No. 3744(W) of 1985 was moved the orders impugned in the present writ petition did not see the light of the day although the impugned orders may be said to relate to the scheme challenged in the earlier Civil Rule. Secondly, any notification and/or order subsequent to the issuance of the earlier rule can always be challenged being a fresh and separate cause of action irrespective of the fate of the earlier rule.
9. Thirdly, merely because, the orders impugned in the instant writ petition were issued pursuant to the liberty granted by this Court in C.R. No. 3744
