JUDGMENT
R.B. Misra, J.
1.Heard Sri S.F.A. Naqvi, learned counsel for the petitioner and Sri J. Nagar, learned counsel for private respondent Nos. 5 & 6 and Sri Mohan Yadav, learned Standing Counsel for the State.
2. In this petition prayer has been made to quash the impugned order dated 6.7.1995 ( Annexure-1 to the writ petition ) whereby the Commissioner cum . Secretary, Board of Revenue has indicated that on the willingness of the petitioner he may be transferred from Firozabad to Agra in the scale of Rs.950-1500 with his placement at the bottom of the employees working in the above scale otherwise on not giving consent the transfer of petitioner from Firozabad to Agra might be cancelled.
3. According to the petitioner he joined on 31.10.1989 as clerk in the Collectorate, Firozabad in the pay scale of Rs.950-1500 and was made permanent on 31.1.1994. The petitioner was also promoted in the scale of Rs. 1200-2040 along with several other employees of district Firozabad and order to that effect was also issued on 30.5.1994 ( Annexure-2 to the writ petition ). The petitioner’s representation on personal family ground was forwarded through District Magistrate Firozabad to Commissioner, Agra on 11.10.1994 ( Annexure-4 to the writ petition ), The later inquired from the District Magistrate Agra as to whether the vacancies in the pay scale of Rs 1200-2040 in the Agra administration is available, whereupon the Addl. District Magistrate, Agra by letter dated 20.2.95 ( Annexuire-6 to the writ petition ) had also informed to the Commissioner, Agra that the post in the scale of Rs. 1200-2040 is vacant in Agra where many of the junior clerks are aspiring for promotion, however there was no objection for transfer of the petitioner in accordance with policy of Board of Revenue. By a circular No. 5405 dated 21.3.1995 issued by Commissioner cum Secretary of Board of Revenue to all District Magistrate the transfer from one district to another district could only be made on the permission of Board of Revenue and on transfer from one district to another district or from one division to another division the incumbent shall be placed in the bottom of the scale and below to those employees of that district as desire where incumbent is seeking transfer in which he has been transferred. It appears by order No. 1455 dated 21.4.1995 of Addl.Commissioner (Administration) for Commissioner Agra Division, Agra sanction of petitioner’s transfer from Firozabad to Agra was given with indication to place the petitioner at the bottom of the employees working in the scale in district Agra. Consequently the District Magistrate Firozabad in reference to the above order had made effective transfer of petitioner from district Firozabad to Agra terminating the lien of petitioner from Firozabad to Agra and relieving him on 1.5.1995 from district Firozabad to Agra afternoon.
4. It appears that large number of the persons, appointed in the year 1988 and early part of 1989 in district Agra came forward with agitative -representation before the Commissioner Agra Division, who on 10.5.1995 has considered the grievances of such employees and observed ( Annexure-10 to the writ petition ) that since the petitioner was appointed on 31.10.1989 in the scale of Rs.950-1500 in district Firozabad and got promotion in the scale of Rs. 1200-2040 in district Firozabad, however many of the persons in district administration of Agra appointed on the same post as Clerk much before the appointment of the petitioner i.e. in year 1988 and 1989 could not get that scale. Therefore by transferring the petitioner from Firozabad to Agra specifically on his own request an anamalous situation were to arise from the petitioners transfer and the petitioner was not only benefited by getting transfer in his native district but was likely to get higher scale i.e., a higher scale above those who were originally appointed prior to the appointment of petitioner to the same post. In these circumstances taking into consideration genuine grievances of other employees it was decided that petitioner could be allowed at Agra in the bottom of the employee working in the scale of Rs.950-1500. It also appears from Annexure C.A.-4 to the counter affidavit of the State Government that on 15.5.1995 petitioner has given consent that in respect of the scale and seniority he shall be abide by the decision of Board of Revenue. However, the petitioner had not challenged the transfer order dated 1.5.1995 and has joined the transferred post in district Agra and had started working however, has challenged the subsequent order dated 6.7.1995 the impugned order in the writ petition which reads as below:-
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dh bl laca/k esa lgefr izkIre gS fd os vius xzg tuin vkxjk esa dfu”BÂ
fyfid osru eku 950&1500 esa viuk LFkkukUrj.k djkuk pkgrs gSa rFkk fu;ekuqlkj
deZpkfj;ksa dh ojh;rk lwph esa lcls uhps viuh T;s”Brk fu/kkZfjr djkus gsrq
lger gSa rHkh jh vtheqhu [kkW dk LFkkukUrj.k tuin fQjkstkckn ls tuion vkxjk
esa fd;k tk;s vkSj ;fn Jh [kW viuh lgefr ugha nsrs gSa rks ,slh n’kk esa vkxjk
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osrueku 1200&2040 esa tuin fQjkstkckn ls dysDs vkxjk esa fd;s x;s
LFkkukUrj.k vkns’k fnukad 21-5-95 dks fujLr dj nsaA
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5. The order of this court dated 2.11.1995 reads as below:-
“After hearing the learned counsel for the petitioner and the learned Standing Counsel and perusing the material on record, the operation of the impugned order dated 6.7.95 at Annexure No. 1 to the writ petition as also the order dated 3/4.8.95 at Annexure No. 1 to the supplementary affidavit passed by the Additional District Magistrate Agra will remain stayed until further orders.”
6. The order dated 2.11.1995 was challenged by Sri Sushil Kumar Srivastava and Sri Santosh Kumar Sharma in Special Appeal No. 1023 of 1995 before this court ( D.B.) and the Special Appeal was disposed of where the above two persons were allowed to file impleadment application in present petition and was directed to be decided finally. Sri Sushil Kumar Srivastava and Sri Santosh Kumar Shanna have filed impleadment application and are making submissions in support of the impugned order dated 6.7.1995 with further submissions that their seniority would be effected. According to them the benefit of appointment, scale and seniority to the petitioner treating him as originally appointee of the year 1989 could not be granted when he is accepted in Agra on transfer and the petitioner cannot be placed above to those appointed in earlier years.
7. Learned counsel for the petitioner has submitted that subsequently the order dated 3/4.8.95 was passed whereby the petitioner was placed in the scale of Rs.950-1500 as Ahalmad with Addl. City Magistrate (First) Agra in place of Sri Sushil Kumar Srivastava by order No. 384 ( Annexure-1 to the supplementary affidavit, however, this order has not been challenged. According to learned counsel the petitioner on his request was transferred from Firozabad to Agra and by virtue of working in the scale of Rs. 1200-2040 he was transferred in the scale to be placed in the bottom of the employees working in the same scale. After acceptance of his transfer now, behind his back without affording opportunity of hearing his seniority and scale can not be reduced. For this purpose the petitioner has placed reliance on ( Surinder Kumar Trehan v. Union of India and Ors. ) where the basic pay scale of employees working in Thermal Power Station of Central Electrical Authority coming to the National Thermal Power Corporation can not be reduced. According to the decision of Supreme Court in AIR 1994 S.C.- 2458 ( Bhagwan Shukla v. Union of India and Ors. ) reducing the basis pay of writ petitioner without granting opportunity of hearing or show cause the writ petitioner was held to be against the principle of natural justice. In view of ( 1994 ) 2 Supreme Court Cases 521 ( Shyam Babu Verma and Ors. v. Union of India and Ors. ) where higher pay scale erroneously given to the in the year 1984 and the excess amount paid to the writ petitioner for no fault on his part could not be recovered. In view of the decision of High Court of Punjab and Haryana in 1991 (5) SLR ( Sukhdev Singh v. State of Punjab and Ors. ) where the reversion of ad hoc promotee continuously holding the promotional post for a period of four years on the representation of another employee without affording any opportunity of hearing was said to be bad. In view of judgment of High Court Punjab and Haryana 1991 (1) SLR-1 (J.L. Gera and Anr. v. The State of Haryana and Ors. ) where reshuffling of seniority was held to be illegal on the presumption that the State Government has used its power of relaxation granted in favour of the claimant. In view of the judgment of Punjab and Haryana High Court in 1992 (1) SLR ( Prakash Vir and Ors. v. State of Haryana and Ors. ) the qualifications prescribed in the advertisement for appointment could not be relaxed until and unless it is clearly stated in the advertisement that the qualification were relax able.
8. In above referred cases, the writ petitioners have themselves had agitated for their cause as the same were not adjudicated or decided viz a viz the right of other candidates or other persons. The facts of the above referred cases are different and distinguishable, whereas, in present case the petitioner was transferred on his own request and the Board of Revenue was only legally entitled to place a person in a particular scale or grade.
9. Counter affidavit has been filed on behalf of State Government which revealed the genuinity of the action taken by the respondents and learned Standing Counsel has endeavoured to strengthen the stand taken by the respondents.
10. I have heard learned counsel for the parties I find that petitioner was appointed on 31.10.1989 as a clerk in district Firozabad and on his request he was transferred subject to the observance of decision and the norms of Board of Revenue and the decision taken by the Board of Revenue for transfer of the petitioner from Firozabad to Agra to redress his personal family grievance. However the petitioner on being transferred did not raise any grievance. Neither he had challenged the transfer order dated 1.5.1995 nor had indicated to defy the orders the norms of Board of Revenue. Keeping in view the grievance of the personnel appointed prior to the petitioner in district Agra and the norms of transfer from one district to another district or from one division to another division and keeping in view that the seniority of clerical cadre is district wise and on being transferred from Firozabad to Agra being the originally appointee of the year 1989 could be given seniority from 1989 and being treaded originally appointee of the year 1989 shall be placed at the bottom below to seniority and scale to those originally appointed earlier to the petitioner. After the termination of the lien of petitioner from district Firozabad being absorbed in district Agra he has to accept the conditions and norms applicable in the district Agra. By the impugned order dated 6.7.1995 the rectificatory order was made whereby keeping in view of the consent of the petitioner and his acceptance to the norms of Board of Revenue, the grievance of the other employees were redressed and setting at rest the anamolous situation thereby indicating that an official wants to remain in the pay scale of Rs. 1200-2040 his initial transfer may be cancelled so that he may remain in Firozabad only. Therefore, there is no legal right of petitioner likely to be infringed on transfer and he can not claim to maintain his original rights in the forms of salary, seniority available in district Firozabad. The petitioner can not be given all multiple or more benefits of scale, salary and seniority on transfer to Agra, which he could not legally entitled to get in case he remained in Firozabad, the petitioner can not be given the multiple benefits indirectly which he could not get directly therefore on transfer, the petitioner was to be treated as originally appointed clerk of year 1989 in Agra and is entitled to be placed below those originally appointees of clerk/personnel of 1988 or early 1989. I do not find any illegality or impropriety in the impugned order dated 6.7.1995 therefore there is no scope to interfere in the writ jurisdiction under Article 226 of the Constitution. The writ petition is dismissed.