Clause 19 of Ext. P6 violates Articles 14 and 16 of the Constitution by creating discrimination among promoted employees.

1. Heard learned counsel for the appellant. This writ appeal has been filed by the respondents against the judgment dated 04/01/2002 in OP No. 15747 of 1995 by which the original petition was allowed setting aside Ext. P6.

2. The facts involved in this writ appeal is that the writ petitioners entered into ministerial service of the Police Department as Lower Division Clerk and subsequently was promoted as Upper Division Clerk. Petitioners were promoted to the cadre of Junior Superintendent and posted at different places. It is pleaded that, in the case of ministerial staff in the Police Department, there is no general transfer on completion of three years and transfers become necessary only when one is promoted to UDC or Supervisory cadre. Order dated 11/10/1983 was issued prescribing procedure to be adopted in the case of transfers. General guidelines / norms for transfer or posting was issued by the Government on 01/06/1987. Revised guidelines were also issued thereafter which were modified from time to time. Government order Ext. P5 dated 03/01/1980 was issued pertaining to transfer and posting to Government employees belonging to Scheduled Castes and Scheduled Tribes. However, the said Government Order was not applicable to the Police Department. An order dated 27/06/1995 (Ext. P6) was issued by which Clause 19 was added, which was subject to challenge in the writ petition. Petitioners' case in the writ petition is that the Government Order dated 27/06/1985 violated Art.16 of the Constitution of India. It was pleaded that other employees have also a right to get posting to the place of their choice and the said right cannot be confined only to the members of Scheduled Castes and Scheduled Tribes. It is pleaded that in the matter of transfer and posting, protection under Art.16(4) cannot be claimed.

3. The learned Single Judge, by the impugned judgment, held that Clause 19 inserted by Ext. P6 is discriminatory and arbitrary. It has further been noted that such preference as was extended by Ext. P6 was not even available to the members of Scheduled Castes and Scheduled Tribes of other departments.

4. The State, aggrieved by the judgment of the learned Single Judge, has come up in this writ appeal. Sri. P. I. Davis, learned Senior Government Pleader appearing for the State contended that the members of Scheduled Castes and Scheduled Tribes have to be given posting of their choice taking into consideration the mandate of Art.335 of the Constitution of India. He submits that a special treatment can always be given to the members of Scheduled Castes and Scheduled Tribes and there was no error in issuing Ext. P6 order. He submits that the right of giving choice of posting cannot be said to be causing any interference in the administrative exigency.

5. We have considered the submission of the learned counsel for the appellants and perused the records.

6. Ext. P6, by which Clause 19 was inserted, was to the following effect:
“19. Scheduled Castes / Scheduled Tribes employees in the non - Gazetted Cadre may be posted to their District of choice on their promotion. Wherever such posting is not possible on administrative reasons and posted to another place or District, they may be given transfer to their District of choice as and when vacancy arises.”
Clause 19, as quoted above, contemplates giving posting on promotion to members of the Scheduled Caste and Scheduled Tribe in a Non - Gazetted Cadre to the place of his choice. The guidelines clearly gives a right of choice of District in which such member wants to be posted on promotion and in the event such posting is not possible, due to administrative reason, they may be given transfer to the District of their choice as and when vacancy a