JUDGMENT
G.P. Mathur, J.
1. This petition has been filed for quashing the order dt. July 31,1996 passed by Director, Land Acquisition, Board of Revenue, U. P., Lucknow transferring Land Acquisition Amins from one District to another District on administrative ground and in public interest The petitioner No. 1 Mohd. Kafeel who was working in the office of Additional Land Acquisition Officer, Lucknow has been transferred to the office of Special Land Acquisition Officer, Varanasi while petitioner No. 2 Muneer who was working in the office of Special Land Acquisition Officer, Sultanpur has been transferred to the office of Additional Land Acquisition Office, Nagar Mahapalika, Lucknow.
2. Learned counsel has assailed the transfer order on the ground that the appointing authority for the Land Acquisition Amins is the Collector of the District and as such there is a district cadre for such class of employees and consequently they cannot be transferred out of the Distt. in which they were appointed. It is urged that in absence of any centralised cadre of Land Acquisition Amins they can not be tranferred outside the district and the impugned order of transfer passed by the Director is not only illegal but is also without any authority of law. Learned counsel has referred to certain Government Orders which had been issued in this regard in May, 1986 and also to en order passed by the Supreme Court in Special Leave Petitions No. 2189 of 1989 and No. 15723 of 1991 which had been filed challenging the order of the High Court by which the writ petitions filed by the Land Acquisition Amins against the order of transfers had been dismissed.
3. In exercise of power6 conferred by Article 309 of the Constitution, the Governor has made the U.P. Land Acquisition (Revenue Department) Amins Service Rules, 1993 (hereinafter referred to as the Rules) which were published on July 14, 1993. The Notification mentions that the same would operate in supersession of all existing Rules and Orders on the subject. The controversy has, therefore, to be examined in the light of the provisions of Rules. Rule 3 gives the definitions and sub-rule (a) defines an “appointing authority” and it means Collector of the district concerned. Sub-rule (e) defines ‘member of service, and it means a person substantively appointed under the Rules or the rules and orders in force prior to commencement of the Rules to a post in the cadre of the service. Under sub-rule (d) ‘Director’ means Director. Land Acquisition appointed as such by the Government and under sub-rule (f) ‘Service’ means the U.P. Land Acquisition (Revenue Department) Amins Service, Part II of the Rules deals with cadre and Rule 4 (1) provides that the strength of the service shall be such as may be determined by the Government from time to time. Sub-rule (2) of this Rule provides that the strength of the service, until orders varying the same are passed under sub-rule (1), shall be 633, consisting of 291 permanent posts and 342 temporary posts. ‘Cadre’ has been defined in Rule 4 of Chapter II of I Fundamental Rules which were made by the Governor of U. P. in exercise of powers conferred by Section 241(2)(b) of Government of India Act, 1935 and it means the strength of a service or part of a service sanctioned as a separate unit. Rule 4, therefore, shows that there is only one cadre of the Land Acquisition Amins for the whole of State consisting of permanent and temporary posts and not a district cadre as contended by the petitioners. All the Amins working in different districts of the State constitute one unit. In case, there had been a district cadre of Land Acquisition Amins, Rule 4 would have specifically mentioned the number of posts sanctioned for each district as in terms of the definition of the word ‘cadre’, the same would have constituted a separate unit.
4. Part III to V of the Rules deal with qualification and recruitment of the Amins and the procedure for the same. Rule 5 provides that recruitment to the post of Amins shall be made 85 per cent by direct recruitment and 15 per cent by promotion. Rule 14 provides that the appointing authority shall, after determining the vacancy, notify the same to the Director and the Director shall then notify to the Employment Exchange the number of vacancies to be filed in. Rule 15 provides that a Selection Committee shall be constituted in accordance with Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1985 which after holding competitive Examination and interview prepare a list of candidates in order of merit as disclosed by aggregate of marks obtained by them in the written test and interview. Procedure for recruitment by promotion is given in Rule 16 and it provides that the Director shall prepare eligibility list of candidates in accordance with the provisions of U. P. Promotion by Selection (On posts outside the purview of the Public Service Commission) Eligibility Rules, 1986 and shall place it before the Selection Committee alongwith their Character Rolls and other records and after considering the same the Selection Committee shall prepare a list of selected candidates arranged in order of seniority as it stood in the cadre from which they are to be promoted and forward the same to the Director who will send the names of the requisite number of candidates to the Appointing Authority. Rule 17 provides that where in any year of recruitment, appointments are made both by direct recruitment and by promotion the Director shall prepare a combined select list by taking the names of candidates from the relevant list in such a manner that the prescribed percentage is maintained and the first name in the list is that of a person who is appointed by promotion. These rules show that in the matter of recruitment, the appointing authority namely the Collector, except for determining the number of vacancy, has no say at all. The Collector has to merely inform the number of vacancies and thereafter the Director has to notify to the Employment Exchange the total number of vacancies existing in the State. The selection has to be made by a Selection Committee constituted in accordance with Sub ordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 In the matter of promotion under sub-rule (2) of Rule 16 it is the Director who has to prepare an eligibility list of the candidates and a combined select list has also to be prepared by the Director where appointment has to be made in a particular year, both by direct recruitment and by promotion.
5. Part VI of the Rules deals with appointment, probation confirmation and seniority. Rule 18 provides that Director shall forward the requisite number of names from the list prepared under Rules 16 and 17 to the appointing authority, who had notified the vacancy and the appointing authority shall then make appointment in order in which they stand in the list prepared under Rule 17, Sub-rule (3) of this Rule provides that if more than one order of appointment is issued in respect of any one selection, a combined order shall be issued by the Director mentioning the names of the persons in order of seniority as determined by the selection, or as the case may be, as it stood in the cadre from which they are promoted. Rule 21 lays down that the seniority of persons substantively appointed in the service shall be determined in accordance with U.P. Government Servants Seniority Rules, 1991. These provisions show that there is no district wise seniority of the Amins but there is a combined seniority list of all the Amins and on account of transfer from one district to another district, their seniority shall not be affected.
6. It may be pointed out that there is no specific provision to the contrary in the Rules prohibiting transfer. The Rules do not say that the post of an Amin is non-transferable or that he cannot be transferred from one district to another. In fact the Rules are silent on this point. Rule 26 which provides that in regard to matters not specifically covered by the Rules or special order, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants, serving in connection with the affairs of the State will, therefore, make Rule 15 (a) of Chapter III of Fundamental Rules applicable to Amins and Clerks and it reads as follows :
15 (a) A Government servant may be transferred from one post to another, provided that, except-
(1) on account of inefficiency or misbehaviour, or
(2) on his written request, a Government servant shall not be transferred substantively to, or except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule 14.”
In view of this clear statutory provision it is not open to the petitioners to contend that they cannot be transferred outside the district.
7. While considering the case of a Central Government Servant in Union of India v. S.L. Abbas, 1993 (67) FLR 293 (SC), it was observed as follows in Para 6 of the Report:
“An order of transfer is an incident of Government Service Fundamental Rule 11 says that “the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority”. Fundamental Rule 15 says that “the President may transfer a Government servant from one post to another”. That the respondent is liable to transfer anywhere in India is not in dispute.”
Rule 11 of Chapter III of U. P. Fundamental Rules is couched is exactly similar language-‘Unless in any case it is otherwise distinctly presided the whole time of a Government servant is at the disposal of the Government and he may be employed in any manner required by proper authority…..’ and therefore the principle laid down in the case of S. L. Abbas (supra) will also be applicable here and an Amin can be transferred anywhere in the State.
8. Challenge to an order of transfer is frequently made by the employees. In this connection it will be useful to keep in mind the following observation of the Apex Court in Gujarat Electricity Board v. Atma Ram, AIR 1989 SC 1433 (Para 4 of the Reports).
“Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employees of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration.”
9. It has been urged that a learned standing counsel had made certain queries from the officers of the State in Surendra Singh Bist v. State, Writ Petition No. 4838 (S/S) of 1996, and in reply thereto Sri K. S. Dhapola, Director Land Acquisition had sent a letter on August 8, 1996 wherein it was mentioned that a proposal has been sent to the State Government to confer the power of transfer of clerks and Amins within the district upon the Collector, within the division upon the Commissioner and outside the division upon the Directorate of Land Acquisition. It is urged that this shows that as the Rules stand today, there is no power of transfer of an Amin outside the district. As shown earlier, there is no district cadre of the Amins and the Collector, though described as an appointing authority under the Rules, plays a very limited role. He neither makes the selection nor has any power of picking or choosing but is only required to issue an appointment order in favour of the persons whose names are sent by the Director and that too maintaining the same order in which they are sent. The Rules clearly show that the posts held by Amins are transferable and the Director has the power to transfer them from one district to another district in the State. The mere fact that a proposal has been sent to the State Government for amending the Rules can make no difference. The sending of proposal as aforesaid does not mean that the Rules as they stand today donot contemplate transfer outside the district or that the Director is not possessed of such a power of transfer.
10. In view of the frequent challenge to the order of transfers and filing of writ petition, it may have been thought advisable to incorporate a specific provision laying down that the Collector will have power to transfer within the District, a Commissioner will have power to transfer within the Division and the Director will have power to transfer any where in the State. It has been held in Banarasi Das v. Kansi Ram, AIR 1963 SC 1165 (Para 12), that an admission would bind the parties only in so far as facts are concerned but not in so far as it relates to a question of law. In Society Banque v. Girdhari, AIR 1940 PC 90, it has been held that an erroneous admission on a point of law is not an admission of a thing, so as to make the admission a matter of estoppel and the court is not precluded from deciding the rights of parties on a true view of the law. Thus the letter written by Sri K. S. Dhapola to the learned standing counsel on August 8, 1996 can have no bearing at ell on the question involved which has to be adjudged from purely legal point of view and the same cannot act as same sort of estoppel or admission of the Department that the Director has no power to transfer an Amin outside the district.
11. Learned counsel has also urged that the name of petitioner No. 1 Mohd. Kafeel does not find place in the order dated July 31, 1996 but the authorities were wrongly asking him to handover charge and to join at Lucknow. In my opinion this is a factual matter for which petitioner No. 1 may make an application and seek clarification from the authorities and no direction is required to be given by this Court.
12. For the reasons mentioned above the writ petition lacks merit and is dismissed summarily at the admission stage.