Jawahar Lal Gupta, C.J.

The respondents in these four cases approached the Central Administrative Tribunal with the prayer that the Department be directed to consider their claims for appointment by transfer to the available posts. The Tribunal having accepted their claim, the Department has filed these four writ petitions.

2. The two issues that arise for consideration are:

(1) Does a Rule, which says that "Sevak shall not have any transfer liability", debar the employee from claiming appointment by transfer?

(2) Does an employee have a right to claim appointment by transfer to a post in a higher scale of pay than the one in which he is working?

3. Learned counsel for the parties have referred to the facts as mentioned in W.P.(C) No.32814 of 2003. These may be briefly noticed.

4. In April 2001 the respondent was appointment as a Gramin Dak Sevak Mail Carrier. The post was in the scale of Rs.1220-20-1600. On December 4, 2002 the Department invited applications for the post of Gramin Dak Sevak Branch Postmaster. This post was admittedly in a higher scale of pay. In the case of persons with workload of three hours, the scale is Rs.1280-35-1980. If the workload is of more than three hours, the scale of pay is admittedly Rs.1600-40-2400.

5. The claim of the eligible persons was considered. Inter-se merit was determined on the basis of the marks secured by the candidates in the S.S.L.C. examination. The respondent was provisionally selected. Despite selection, the order of appointment was not issue. On the contrary, a notice dated May 8, 2003 was issued for making a fresh selection. Aggrieved by the action, he approached the Central Administrative Tribunal through a petition under Section 19 of the Administrative Tribunals Act, 1985. He prayed that the notice dated May 8, 2003 be quashed and that the respondents be directed to consider his claim for appointment.

6. The Department contested his claim. It was pleaded that there were complaints that the candidate, viz. the present respondent did not have "independent property and income". Still further, it was also pleaded that the Gramin Dak Sevaks have no transfer liability. Thus, the post could not be filled up by transfer of an employee from one place to another. On these premises it was claimed that the petition be dismissed.

7. The Tribunal considered the matter and found that the provision in the Circular that an employee is not liable to be transferred cannot mean that he cannot exercise his right "for seeking appointment by transfer subject to fulfillment of other conditions as per the instructions contained in the Director's letter". Thus, the petition was allowed. It was held that the applicant was entitled to be considered for appointment by transfer "on the basis of the selection already done by the respondents". Aggrieved by the order the Department has filed the present petition.

8. The factual position in the connected cases is broadly similar. However, the primary distinction lies in the fact that the respondents therein, viz. the applicants before the Tribunal, has not competed for selection with the other eligible candidates, but had claimed appointment by transfer, as a matter of right. It is in the background of this position that the counsel for the petitioners have contended that since the employees have no liability to be transferred, they have no right to claim appointment by transfer. Secondly, it has also been contended that no employee an claim, as a matter of right, that he should be appointed by transfer to a post higher than the one in which he is already working.

9. The claim as made on behalf of the petitioners has been controverted by the counsel for the respondents. Mr. Radhakrishnan has contended that the employees have not only a right a be considered for appointment by transfer, but such transfer should also include an appointment to a higher post.

10. It is in view of the above contentions that the two questions as noticed at the outset have to