(Per : Dr D Y Chandrachud, CJ) These special appeals arise from a judgment of the learned Single Judge dated 17 September 2015 dismissing two writ petitions filed by the appellants separately for the payment of salary between 17 July 1993 until 28 March 1997.
The appellants were employed as clerks in the office of the District Supply Officer, Agra. The State Government issued a notification on 8 June 1993 by which a scheme was formulated for accommodating surplus staff. On 17 July 1993, the appellants were transferred from Agra to Mainpuri. The Government Order dated 8 June 1993 had envisaged that in the district of Agra, 43 employees would be retained on the basis of seniority in the Food and Civil Supplies Department while others, who were junior, would be adjusted in the neighbouring districts. The appellants challenged the order of transfer by filing writ petitions1 under Article 226 of the Constitution. By an interim order dated 12 August 1993 in both the writ petitions, a learned Single Judge while issuing notice directed that in case the order dated 17 July 1993 has not been implemented, its operation shall remain stayed for a period of three months. The interim order was extended until further orders on 22 November 1993. Eventually, both the writ petitions were disposed of by a judgment and order dated 1 October 1996. The learned Single Judge noted the submissions of the appellants that they had wrongly been shown in the seniority list below serial no. 42 (the first 42 employees having been retained in Agra). The learned Single Judge while disposing of the petitions allowed the appellants to submit a representation for the fixation of their seniority. The State was directed to consider as to whether the appellants fell within the surplus staff. The judgment envisaged three situations. Firstly, if the appellants were not surplus upon fixation of their seniority, they would not be transferred on the ground which weighed in the notification dated 8 June 1993. Secondly, even if they were not surplus, the State would be at liberty to transfer the appellants in future on grounds other than the ground that they had been found to be a part of the surplus staff. Thirdly, in the event that it was concluded that the seniority was correctly fixed and that the appellants were amongst the surplus staff, the State would be at liberty to pass appropriate orders. This determination of seniority was directed to be made within a period of three months and the petitions were disposed of. Eventually, on 28 March 1997, orders were passed by which the appellants were transferred back from Mainpuri to Agra.
In the writ petitions which were filed by the appellants, the relief that was sought was, for the payment of arrears of salary from 17 July 1993 until date and for consequential reliefs. Eventually, and it is not in dispute during the course of the hearing of the special appeals, the issue which survived was in regard to the entitlement of the appellants to the payment of salary for the period from 17 July 1993 (the date on which they were transferred from Agra to Mainpuri) until 28 March 1997. The learned Single Judge dismissed the writ petitions seeking the payment of salary on the ground that though the contention of the appellants was that they were never relieved in terms of the order of transfer dated 17 July 1993, the fact remained that the charge of the post had been taken from them and the interim order of the High Court was passed only on 12 August 1993. The learned Single Judge held that there is nothing on the record to show that the appellants had ever joined at Mainpuri and the admitted case of the appellants is that they continued to remain at Agra and approached the department for signing the attendance register but were not permitted to sign it. In the view of the learned Single Judge, if the appellants had not worked during the period from 18 July 1993 to 23 January 1997, they could not be allowed salary on the principle of 'no work no pay'. The High Court by its interim order dated 12 August 1993 had issued a conditional order to the effect that the operation of the order of transfer shall remain stayed only if it had not already been implemented. In the view of the learned Single Judge, since the charge of the post had already been taken over from the appellants, they ought to have joined at Mainpuri and thereafter contested the validity or invalidity of the order of transfer. Hence, the petitions have been dismissed.
In assailing the correctness of the order of the learned Single Judge, the learned counsel appearing on behalf of the appellants submits that while it is true that the interim order dated 12 August 1993 was conditional in the sense that the order of transfer dated 17 July 1993 was to remain stayed in case it had not been implemented, this order was confirmed on 22 November 1993. Moreover, it was submitted that when the writ petitions filed by the appellants came up for final hearing, the learned Single Judge in the judgment dated 1 October 1996 recorded that by reason of continuance of the appellants in the same place by virtue of the interim order, the purpose of the writ petitions had almost been achieved. Hence, directions were issued in the judgment for the redetermination of seniority of the appellants by the learned Single Judge. It was urged that the issue as to whether the charge had been taken from the appellants was not raised in the earlier writ petitions and it was only subsequently when the second set of writ petitions was filed for the purpose of seeking the payment of salary for the period of 4 years between 1993 and 1997 that it was sought to be contended that the charge had been taken over from the appellants. Moreover, it was urged that during the pendency of the writ petitions, an interim order was passed by the learned Single Judge on 22 April 2013 by which it was noticed from a report submitted on 30 January 2003 by the Additional District Magistrate (Food and Civil Supplies, Agra) that the order of transfer had not been implemented. The learned Single Judge directed the District Magistrate to consider the representation of the appellants taking into account both the reports of the Additional District Magistrate dated 30 January 2003 and the report of the Commissioner, Food and Civil Supplies dated 15 June 2004.
In pursuance of the aforesaid interim directions, an order was passed by the Collector and District Magistrate, Agra on 12 July 2013 to the effect that the appellants would not be entitled to salary for the period between July 1993 and March 1997. Consequently, it was urged that, in the present case, having due regard to the aforesaid factual background, the learned Single Judge has erred in declining to grant the relief for the payment of salary between July 1993 and March 1997 since the relevant material has not been considered.
On the other hand, the learned Standing Counsel appearing on behalf of the State submitted that the interim order of the learned Single Judge dated 12 August 1993 was not a blanket order which stayed the operation of the order of transfer dated 17 July 1993. The learned Single Judge had clarified that in the event that the order of transfer had not been implemented, it shall be stayed for a period of three months. The learned Standing Counsel has relied upon the report which was submitted by the Additional District Magistrate following the interim order dated 22 April 2013, in which it was found that, as a matter of fact, charge has been taken over from the appellants. The learned Standing Counsel also drew the attention of the Court to the specific stand of the State in the counter affidavit which was filed before the learned Single Judge in the proceedings in which the impugned judgment has been delivered to the effect that the charge had been taken over from the appellants on 17 July 1993. In the counter affidavit, it has been stated that since the appellants did not voluntarily hand over the charge of the post, the charge was taken over and even before the interim order was passed, the appellants had been relieved. Consequently, it was submitted that not having taken over the charge at the place of transfer, the appellants would not be entitled to salary for the period between July 1993 and March 1997.
The rival submissions fall for consideration.
At the outset, it must be noted, that the interim order which was passed by the learned Single Judge on 12 August 1993 was nearly a month after the order of transfer which was issued on 17 July 1993. The interim order, therefore, clearly envisaged that the stay which was granted on the operation of the order of transfer would operate only if the order of transfer which was issued on 17 July 1993 had not been implemented. The issue as to whether the charge was in fact taken over before the interim order was passed on 12 August 1993 is essentially a question of fact. The learned Single Judge has considered that issue.
Before we evaluate the material on the record which has been placed by the learned counsel appearing on behalf of the appellants, the Court must consider the parameters of its jurisdiction in a special appeal. The Division Bench in the course of an intra court appeal must have due regard to whether the judgment of the learned Single Judge has taken a possible view on the basis of the material on the record and if that is so, the Division Bench ought not to interfere with the order of the learned Single Judge. Undoubtedly, if the relevant material has not been borne in mind or if the judgment is contrary to law or against the factual material, a case for interference is made out.
In the present case, the primary foundation of the submission of the appellants is based on the order of the learned Single Judge dated 1 October 1996. Now, it is necessary to emphasize that the issue as to whether the appellants were entitled to salary during the period after July 1993 and onwards or as to whether they would not be entitled to salary on the ground that despite being relieved, they had not worked at the place of transfer, did not fall for determination in the earlier writ petitions filed by the appellants. The challenge in the writ petitions was to the order of transfer by which the appellants were on 17 July 1993 transferred from Agra to Mainpuri. In fact, that is why the ultimate judgment of the learned Single Judge dated 17 October 1996 envisaged three different eventualities, as we have noted above. The first eventuality is that if it was found on the fixation of seniority that the appellants were not surplus, then they would continue in their postings at Agra. However, the second eventuality recognises the power of the State to transfer the appellants in any event whether or not, they were surplus since the appellants admittedly belong to a transferable service. Consequently, in the second eventuality, the learned Single Judge envisaged that even if the appellants were not found to be surplus, the State would be entitled to transfer them in future though not on the ground that they were surplus. The third eventuality was that if it was found that the seniority had been correctly fixed in the original instance, the order of transfer on the ground that they had been rendered as surplus at Agra would necessarily have to stand. Hence, it is clear that there is no determination by the learned Single Judge of the issue as to whether or not the appellants were surplus since this was left for determination by the competent authorities at the departmental level. If this background is properly appreciated, it is evident that the observation contained in the order of the learned Single Judge dated 17 October 1996 that the purpose of the petitions had almost been achieved by the grant of the interim order as a result of which the appellants had continued in the same place, would not be conclusive of the issue as to whether, as a matter of fact, the appellants would be entitled for salary for the period between July 1993 to March 1997.
In the present case, during the pendency of the writ petitions, an order was passed by the learned Single Judge on 22 April 2013. It appears that the Additional District Magistrate (Civil Supplies, Agra) had submitted a report dated 30 January 2003 and there was also a report of the Commissioner, Food and Civil Supplies, Lucknow dated 15 June 2004. The Collector and District Magistrate was directed to consider both the reports and to determine on the basis of the representation submitted by the appellants as to whether the appellants had been relieved on 17 July 1993. The Collector, Agra issued a direction on 17 July 2013 in compliance with the interim direction dated 22 April 2013. The report indicates that the Additional Collector had submitted a report upon which the Commissioner had submitted his own report on 15 July 2004. Thereupon, one of the two appellants was heard on 4 October 2004 on which the directions had been issued on 20 January 2005. It was found therein that it had been established that though the appellants had been relieved on 17 July 1993, they had not taken over the charge of the post to which they were transferred. Consequently, it was found that for the period between July 1993 and March 1997, the appellants would not be entitled to their salary on the principle of 'no work no pay' since they did not assume charge of the post at the transferred place. Apart from the finding of the Collector, Agra, the learned Single Judge had before the Court the counter affidavit which was filed by the State in both the writ petitions. In the counter affidavit, it was the specific stand of the State that the appellants had been relieved and that despite the fact that charge had been taken over from them, they had not assumed charge at the transferred place of postings. For this purpose, we may advert to the counter affidavit which was filed on behalf of the State in the writ petition filed by the appellant (Hari Babu Khandelwal) where it was stated that the appellants had been relieved on 17 July 1993 and when the relieving memo was served on 9 August 1997, the appellant read the relieving order and returned it back to the person who served it upon him. The entire issue as to whether the appellants would be entitled to their salary for the period 1993 to 1997 turns upon a factual finding on whether the appellants had been relieved before the interim order dated 12 August 1993 had been served upon them. Both the Collector and the District Magistrate, Agra and in the exercise of judicial review, the learned Single Judge have come to the conclusion that the appellants had been relieved. The appellants were clerks in a transferable service and there was no reason or justification, once they had been relieved, for them not to assume charge at the transferred place of posting.
Hence, having assessed the submissions which have been urged on behalf of the appellants, we see no reason to interfere with the order of the learned Single Judge.
The special appeals are, accordingly, dismissed. There shall be no order as to costs.