ORDER Mehrotra, J.
1. This is a petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the orders passed by the Director of Education transferring the petitioner from the post of a clerk in the office of the Board of High School Intermediate Education to the office of the Government Normal School, Aligarh,
2. The petitioner was appointed as a temporary clerk in the office of the Board of High School and Intermediate Education U. P., Allahabad by the order of the Secretary of the aforesaid Board dated 24-9-1942 and by another order of the Secretary dated 27-8-1945 he was appointed a clerk in the scale of Rs. 30--2 1/2--50. By an order of the Secretary of the Board dated 30-9-1948 the petitioner was confirmed in his permanent appointment as a Lower Division Assistant in the said office. His scale was subsequently increased to Rs. 60--4--100 on the recommendation of the U. P. Pay Committee's Report.
On 21-4-1947 he was promoted to a temporary Tenancy in the higher scale of Rs. 80-6-110--EB--6--140 and he continued to work in this increased scale with brief interruptions. After 1-2-1949 he, however, continued to work in the higher scale and was never reverted. He received three increments in pay on 19-8-1948, 1-1-1950 and 23-1-1951 respectively. On 15-2-1952 the Secretary of the Board passed an order appointing the petitioner to a temporary post in the higher scale of Rs. 80--6--110--EB--6--140--EB--10--200--EB--20--240 with effect from 1-1-1952.
From 1-1-1952 till 14-6-1953 the petitioner worked as a clerk in the aforesaid scale and on 30-5-1953 an order was passed transferring the petitioner from the office of the Board to the office of the Government Normal School, Aligarh, and in consequence of the said order he was relieved with effect from 15-6-1953.
The petitioner took leave and rejoined on 13-10-1953. Another order was then passed on 6-10-1953 by the Director of Education Uttar Pradesh directing that, with effect from the date of his rejoining he would be appointed to the post of Head Clerk, Government Intermediate College, Allahabad in the scale of Rs. 80--5--100--6--130.
This was only a temporary appointment and it is contended by the petitioner that this order had the effect of reducing the petitioner's rank from the post of a clerk in a higher scale to a lower one. The petitioner alleges that the impugned orders amount to reduction in rank and as he was a civil servant under Article 311 of the Constitution he was entitled to an opportunity being given to him to show cause against such orders.
3. In the affidavit filed in support of the petition it has been stated that the petitioner's work was throughout appreciated and he was never found guilty of any misconduct which would disentitle him to remain in service.
4. In May and June, 1953, however, he was entrusted with confidential work in connection with the examination results of 1953. A supplementary affidavit was filed by the petitioner in which he has stated that the petitioner apprehends that the order of transfer has been passed at the instance of Sri N.D. Gothi, the then secretary of the Board. The Secretary was displeased on account of certain instances which the petitioner had set out in his affidavit.
5. In or about August 1949 the Secretary was the Registrar Departmental Examinations and the petitioner was working as Librarian in charge of the Library Section of the Board. In the month of August the Secretary came to the Library and told the petitioner that he wanted to go through the books which had been submitted by different publishers for being approved as text-bocks for the Intermediate Examination of the Board. The Secretary said that he was also writing a book which would be submitted for approval and selection by the Board as a test-book for the aforesaid examination and he, therefore, wanted to go through the books submitted by other authors on the same subject.
As the books which were submitted for approval used to be kept in the custody of the Librarian it was forbidden to show them to any one pending the decision of the Board. The petitioner, therefore, told Mr. Gothi that he would not show the book to him as it was against rule. He, however, told him that he might be in a position to show him the book provided he would get an order from the Secretary. This annoyed Shri Gothi and it was on account of that incident that Mr. Gothi recommended his transfer.
On 8-10-1952 Sri N.D. Gothi was appointed Secretary of the Board of High School and Intermediate Education. On 13-3-1953 he wrote a D.O. recommending the transfer of the petitioner from the office of the Board. This has also been referred to in the order of the Director of Education dated 30-5-1953. He has also stated in the supplementary affidavit that during the period between October 1952 and March 1953 the petitioner never worked directly under Mr. Gothi and therefore he was not in a position to form any estimate of his work.
6. In the petition the Director of Education Uttar Pradesh. Allahabad has been impleaded as one of the opposite parties. Notices were issued to both the opposite parties and two counter affidavits have been filed. One affidavit has been filed by Braj Kishore Srivastava, Assistant Incharge Office of the Director of Education, Allahabad and the other has been filed by Sri Narain Das Gothi himself. The affidavit filed by Mr. Gothi refutes some of the assertions of the petitioner in his supplementary affidavit.
7. The counter affidavit filed on behalf of the Director of Education by Braj Kishore Srivastava in short states that from 1-4-1947 to December 1951, and from 1-1-1952 to 15-6-1953, the petitioner officiated in temporary vacancies in the grade of Rs. 80-6-110-EB-6-140 and Rs. 80-6-110-EB-6-140-EB-10 200-EB-20-240.
At the time of his transfer his substantive grade was of Rs. 60-4-80-EB-4-100 and his appointment in the higher grade was purely as a temporary measure. He was further appointed to the Government Normal School as a routine clerk in the grade of Rs. 60-3-90-4-110 and was given the same pay which he was drawing at the time of his appointment to the post of the clerk. The subsequent transfer to Aligarh was also a temporary measure in this substantive grade which he was holding at that time and there was no reduction in his pay.
The petitioner did not join at Aligarh but proceeded on medical leave till 12-10-1953. Thereafter he was transferred from Aligarh to Government Intermediate College Allahabad by an order dated 5-10-1953, where he joined on 13-10-1953 as a temporary measure, and he was given temporarily a higher grade. On 26-3-1954 the Director of Education transferred the applicant from Government Intermediate College, Allahabad to the office of the District Inspector of Schools, Patehpur as Note and Drafter. He proceeded on leave on 30-3-
1954 and joined on the expiry of the said leave at Fatehpur on 24-5-1954.
By another order dated 15-1-1955 passed by the Deputy Director of Education 3rd Region, Allahabad he was again transferred to the office of the District Inspector of Schools, Farrukhabad. The petitioner joined at Farrukhabad on 24-1-1955 and after working there till 27-1-1955 he again proceeded on leave and still continued on leave. On 4-4-
1955 the District Inspector of Schools Farrukhabad requested the Deputy Director of Education for his transfer as in his opinion he was avoiding to join there.
8. The petition is mainly based on two grounds Firstly, it is contended by the petitioner that the petitioner was employed in the office of the Board of High School and Intermediate Education U. P. Allahabad and the Director of Education had no right or power to transfer him to another office. Secondly it is contended that the petitioner is a civil servant. He is entitled to the protection under Article 311 of the Constitution.
9. The transfer from the office of the Board of Intermediate Education to any other office on a scale which is lower than the scale on which he was working at the time of his transfer amounts to reduction in rank which could not be done without giving the petitioner an opportunity to explain his conduct and to a further notice to show cause against the order proposed. There has been thus a violation of the provisions of the Constitution and the two orders of transfer are thus illegal and should be quashed.
In short the answer of the opposite parties to both these contentions is that the staff of the Board of intermediate Education is under the control of the Director of Education, it is a part of the educational department of the State Government and consequently the Director had power to transfer him from the Intermediate Board to any other office under his control, it was then contended by the State Counsel that although he temporarily officiated on posts carrying a higher scale of pay his Substantive grade was Rs. 60-4-80-EB-4-100.
10. All the transfers were temporary arrangements and he still continued to hold his lien on the substantive grade. There was, therefore, no reduction in rank and he was not entitled to the protection under Article 311 of the Constitution. It is admitted in the counter affidavit that he had been transferred to a post, the grade of which was lower than the grade of the post on which he was working at the time of his transfer, although there had been no change in the pay which he was drawing at the time of his transfer.
The petitioner had also made representation to the State Government against the order of transfer, but that was rejected. The stand taken by the department as well as by the State Government is that the transfer was for administrative reasons and not by way of punishment, consequently Article 311 of the Constitution did not apply.
11. The two orders of transfer do not mention that the transfer order had been passed as a measure of punishment against the petitioner, but it does appear that the order was on account of certain D. O. which was sent by the then Secretary to the Director of Education, in this order itself reference has been made to the D. O. of the Secretary dated 13-3-1953. This D. O. has been filed as an Annexure D to the counter affidavit filed by Mr. Gothi.
In this D. O. the attention of the Director has been invited to a report of Sri Sanyal, the predecessor of Sri Gothi and it is mentioned that on the perusal of that report it appeared that Mr. Sanyal was not satisfied with the work of the petitioner. The Secretary has also stated that during his own period he had not heard any encouraging report about the petitioner and in spite of the assurance given to him there had been no change in his work. The Secretary has also mentioned in his D.O. that in spite of all the efforts the character roll of the petitioner was not found in the office.
On these grounds the Secretary has prayed that the petitioner should be transferred to some other office. If the order is read along with the D. O. sent by the Secretary to the Director of Education a copy of which has been filed along with the counter affidavit itself, it is manifest that the transfer was on account of the complaint made by the Secretary against the work of the petitioner and an express desire that the petitioner should be transferred to some other office. It cannot, therefore, be argued by the State counsel that the transfer was purely on an administrative ground and did not cast any reflection on the character of the petitioner.
In cases where a person is serving on a higher, scale as a temporary measure or on somebody's vacancy his transfer to a substantive grade on the return of the employee on whose leave vacancy he had been working may be said to be a transfer purely based on administrative grounds. In cases also where the transfer is based on the ground of convenience or requirement of particular office it may be regarded as purely an administrative measure but where on the complaint of his superior officer as regards the work of an employee he is transferred to some other past, it cannot be regarded anything else than a punishment awarded to the employee and cannot be considered an order passed as a pure administrative measure.
No particular significance can be attached to the use of the word administrative measure by the Director of Education in his order. Whether the order of transfer is by way of punishment or as a result of spine administrative policy is a matter which will depend upon the circumstances of each case. The fact that the department chose to call it a transfer based on administrative ground will not make the order as such and will not debar this Court from considering the matter on the evidence before it and come to its own conclusion whether the order was passed as a punishment or as an administrative measure.
In the present case when the order is read along with the D. O. of the Secretary it is manifestly clear that the order of transfer was based on the complaint made by the Secretary, and as such it was made as a measure of punishment and not purely on administrative grounds. The provisions of Article 311, therefore, are attracted and the petitioner is entitled to claim the protection given to an employee under the said Article if he is able to establish that the transfer amounts in fact to reduction in rank.
It is true that there has been no change so far as the actual amount of salary which the petitioner was drawing at the time of his transfer. It is also admitted that he has been transferred to a grade which is lower to the one which he was enjoying at the time of his transfer, but as I have already pointed out the contention of the State is that the post at which he was working at the time of his transfer was only a temporary post and he maintained his lien on a substantive scale. By the transfer, there has been no reduction in his substantive scale. In my opinion there is no substance in this contention of the State either.
12. If a person is working on a higher scale though temporarily and he is reverted to his substantive scale even that may amount to reduction in rank provided that it has been done by way of punishment.
If the person has been officiating on a higher scale in some leave vacancy and on the return of the permanent incumbent he is reverted back to his substantive grade it may be that such a reversion does not amount to reduction in rank or that if the post on which he was working temporarily has been abolished which results In his reversion to his substantive grade it may be said that it does not amount to reduction in rank but where a person is working on a post which is of higher grade even if he is reverted to his substantive post on the ground of certain complaints against him it will amount to a reduction in rank.
13. In the present case as I have already pointed out the transfer was based on the complaint mad by the Secretary, and as such it does amount to reduction in rank though he had not been confirmed on the scale in which he was working at the time of his transfer and he may have retained his lien on the substantive grade.
14. Reliance was also placed by the State on the letter of appointment issued to the petitioner In the higher scale dated 27-3-1950 which reads as follows: --
"The following permanent assistants of this office in the scale of Rs. 60-4-80-EB-4-100 who have been officiating in different posts of clerks in the scale of Rs. 80-6-110-EB-6-140-EB-10-200-EB-20-240. With effect from the date noted against each are hereby appointed to the temporary posts in the latter scale with effect from 1-1-1952. Their confirmation in these posts will depend not only on the posts being made permanent by Government but also on their work and conduct being satisfactory."
It has been argued that the condition on which he was appointed to that scale was that he would not be confirmed on his post if his work and conduct was found unsatisfactory. In the present case as the various officers under whom he worked found his conduct and work unsatisfactory he could not be confirmed to the post on which he was working and as he had no right to be confirmed on that post any transfer on a post though on a lower scale did not amount to reduction in rank when his salary was not affected.
In my opinion this argument cannot be accepted. What the letter of appointment meant was that the confirmation of the assistants did not depend upon the post being made permanent but also on the quality of the work. The post being made permanent will not necessarily imply the confirmation of the particular incumbent. But it will also further depend upon the quality of his work, but it does not give power to the Director of Education to transfer the assistants in the office to a post in the lower scale on the ground of certain complaints against his work. There is no power of transfer given in this letter of appointment.
15. The appointing authority did not retain to itself the power of transfer if his work was found unsatisfactory. The only power retained by the appointing authority under this letter is to withhold his confirmation to the post on which he was appointed on certain conditions. This question could be considered only at the time of his confirmation. The Director, therefore, could not rely upon the condition embodied in the letter of appointment as giving him the power to transfer the employee on the ground that his work was unsatisfactory.
It was also contended by the petitioner that the Secretary who complained about his work had no personal opportunity to watch his work as the petitioner never worked directly under him and he was not in a position to give his own opinion about the quality of the petitioner's work. He has relied upon the earlier report of Mr. Sanyal, his predecessor and has only remarked that he has not received any encouraging report that the petitioner in spite of the warning given by the predecessor had improved the quality of his work.
16. As regards the report of Mr. Sanyal it is contended by the petitioner that during the time when Mr. Sanyal was working some complaint was made against the applicant, to him about which he made enquiry and exonerated the petitioner of the charges made against him. It was Mr. Sanyal who recommended his promotion to a higher scale. It is not therefore open to the Secretary to reopen that matter again and rely upon the report of Mr. Sanyal in proof of the quality of petitioner's work.
17. The main question which has to be considered is whether the order of transfer was based on the complaint made by the Secretary or it was only an administrative measure. As I have already held that the order was really based on the report of the Secretary about the quality of the work of the petitioner, it is not necessary for me to determine the question whether it was open to the Secretary to have reopened the matter which was the subject of report by Mr. Sanyal.
In my judgment therefore the order of transfer was a measure of punishment and it amounted to reduction in rank. The petitioner was entitled to protection under Article 311 of the Constitution. In view of my decision on this question it is not necessary to determine if the Director had power to transfer the petitioner but as the point has been urged by both the parties I should express my opinion on this question.
18. The Intermediate Education Act of 1921 provides for the Constitution of the Board of High School and Intermediate Education and the powers of the Board are enumerated in Section 1 as follows:--
"1. to prescribe courses of instruction for the Intermediate classes and the high sections of English schools in such branches of education as it may think fit;
2. to grant diplomas or certificates to persons who--(a) have pursued a course of study in an Institution admitted to the privileges of recognition by the Board; or (b) are teachers; or (c) have studied privately, under conditions laid down in the Regulations, and have passed the examinations of the Board under like conditions;
3. to conduct examinations at the end of the High School and Intermediate courses;
4. to recognize institutions for the purposes of its examinations;"
19. Section 10 provides:
"The following shall be officers of the Board-
(1) The Chairman;
2. The Secretary; and
3. Such other officers as may be declared by the regulations to be officers of the Board."
20. The Director of Education is ex-officio Chairman of the Board and the Secretary is to be appointed by the Provincial Government upon such conditions and for such period as the Provincial Government may deem fit. He shall be removable from office by votes of not less toan three-fourths of the members present at a special meeting of the Board at which not less than one-half of the total number of the members are present.
21. Section 12 Sub-section (2) provides that the Secretary shall, subject to the control of the Board be the administrative officer of the Board. He shall be responsible for the presentation of the annual estimates and statement of accounts.
He shall be responsible for seeing that all moneys are expended on the purpose for which they are granted or allotted.
He shall be responsible for keeping the minutes of the Board.
He shall exercise such other powers as may be prescribed by the regulations.
The Secretary is, therefore, under the Act the Administrative Officer of the Board.
22. Chapter III of the Regulations framed under the Act lays down the powers of the Secretary. There is nothing in the Act or regulations giving power of control to the Director of Education over the staff of the Board. The Director of Education is the Chairman no doubt of the Board but the Administrative officer is the Secretary. The Act which has created the Board does not specify as to who has to make appointments of the staff of the Board. There is nothing laid down specifically in the Regulations framed under the Act to that effect.
23. The State Counsel relied upon the Educational Code, Chapter II, the heading of which is the Controlling and Inspecting Agencies.
24. Clause 4 of the Educational Code provides that the Director is Head of the Department and is assisted in its administration by the Deputy Directors, the Assistant Director (Women), the Personal Assistant and the Personal Assistant (Women).
25. Clause 6 provides that in the case of district inspecting officers the Director shall appoint, promote, transfer, punish (including removal and dismissal) and grant leave admissible under the rules, but shall not exercise the powers of transfer and punishment until he has consulted the Chairman of the Education Committee of the district board of the district in which the inspecting, officer concerned is employed. .
26. Clause 7 provides the list of the officers Who are authorised to exercise powers to the extent shown in columns 3 and 4 of the schedule in regard to the appointment, promotion, transfer punishment (including removal and dismissal), and grant of leave admissible under the rules.
27. Item No. 3 in the schedule given in this paragraph says that the Secretary, Board of High School and Intermediate Education, Uttar Pradesh is the officer who has 5een delegated powers to appoint, promote, punish (including removal and dismissal) and grant leave admissible, under the rules.
1. Clerks (other than the head clerk) in his own office.
2. Menials in his own office.
28. Note 2 appended to this clause says that all other posts in Subordinate Service in the Department are controlled by the Director.
29. In clause 4 the officer is the Director who is the Head of the Department and is assisted in its administration by the Deputy Directors, the Assistant Director and the Personal Assistant. There is no mention of the Secretary of the Board as an officer who has to assist the Director as the Head of the Department. That to my mind indicates that the Department referred to in the Educational Code does not include the Board. The Board of Intermediate Education cannot be regarded as a Department of Education of which the Director is the Head.
Under Clause 7 the Secretary has been given power to appoint, promote and punish the clerks employed in the Board. There is no mention of the power, to transfer in this clause, but in the present case if the reduction in rank is treated to be by way of punishment the power can only be exercised under Clause 7 by the Secretary. As I have already pointed out the Board of High School and Intermediate Education cannot be regarded as a part of the Department of education. It is a statutory body created under the Act.
The function and the powers of the body are enumerated in the Act itself. It has to act in accordance with the provisions of the Act itself. In order to maintain a uniform policy the Director has been made ex-officio Chairman of the Board and whatever powers he exercises he does it by virtue of his position as the Chairman of the Board and not as the Director of Education.
30. Various provisions of the Code and Financial Hand Book were placed before me to show that the powers of the Director and that of the Board are mutually exclusive. District powers are given to the Secretary of the Board and to the Deputy Director of Education. It is not necessary for me to refer to all of them, but in my opinion the Board cannot be regarded as a part of the Education Department of the State so as to be under the control of the Director of Education.
Apart from it as I have already indicated the power to punish the staff of the Board has been given to the Secretary and I find that in the present case the transfer was in fact punishment awarded to the petitioner. The Director had in my opinion no power to transfer him. There is another aspect of the matter to be considered. If the Board of Education is a body created under the Act the staff of the Board is not a part Of the Education Department. The transfer to some other office in fact amounts to termination of the services of the petitioner in the office and re-employment in another office and in that view of the matter also the opportunity should have been given to the petitioner.
31. In view of my decision it is not necessary for me to go into the circumstances whether the order of transfer was arbitrary or mala fide as it was at the instance of the Secretary who had animus against the petitioner.
32. I, therefore, allow this petition with costs and quash the orders passed on 30-5-1953 and 5-10-
1953. If the Board desires to take any steps against the petitioner the provisions of Article 311 should be complied with and he should be given an opportunity to explain his conduct.