ORDER
U.L. Bhat, C.J.
1. Common questions of law arise for consideration in these petitions and, therefore, they have been heard together and are being disposed of by this common order.
2. Petitioners are members of the staff of various district judicial establishments in the State. They have been transferred by the High Court from their parent district to another district. Their particulars are given hereinbelow :
____________________________________________________________________________S. No. M. P. No. Name and post of Original Now transferredpetitioner. District to____________________________________________________________________________1. 2684/93 1. Dhaniram Ahirwar Chhatarpur Jabalpur districtU.D.C. (Reader to 1st CJ.-II). 2. Chhedilal Ahirwar Chhatarpur Bilaspur districtU.D.C. (Reader to C.J.-II Bijawar). 2. 2765/93 1. L. P. Shukla A.R.K. Jabalpur Bilaspur district2. R. L. Mishra Jabalpur Bilaspur districtLibrarian. 3. 2769/93 1. Ramnath Chaurasia Seoni Satna districtL.D.C. 2. Krishna Kumar Seoni Satna districtClerk 4. 2776/93 1. Kamal Kishore Satna ChhatarpurGupta, L.D.C. district2. Shesh Mani Verma Satna Bilaspur districtNaib-nazir. 3. Mohd. Habib Khan Satna Seoni districtL.D.C. 5. 2777/93 1. Ram Swaroop Chhatarpur Satna districtChaurasia, Naib-nazir 2. Anupam Jain, Chhatarpur ChhindwaraDeposition writer. district____________________________________________________________________________
Communications in four cases were sent on 12th June, 1993 and in one case was sent on 17-6-1993. The petitioners are challenging their transfer from their parent districts to other districts.
3. Though several contentions have been raised in the petitions, learned counsel for the petitioners Shri P. R. Bhave has confined his arguments to the following submissions :
(i) Petitioners who are members of the Establishment of District Judiciary in particular districts, are not liable to be transferred to another district.
(ii) High Court has no power to effect such transfers.
(iii) The transfers adversely affect their seniority and chances of promotion and are, therefore, invalid.
(iv) The transfers are affected by way of penalty and since no opportunity to show cause has been given, the same are violative of principles of natural justice and contrary to the provisions of M. P. Civil Services (Classification, Control and Appeal) Rules, 1966, as the procedure prescribed therein has not been followed.
(v) There are no justifiable reasons for the transfers.
(vi) All the petitioners have submitted representations to the Registrar, but the same have not been considered.
4. Points Nos. 1 to 3 : Learned counsel for the petitioners has placed reliance on the decisions in Dr. Vasant v. State of M.P. and others, 1986 MPLJ 295 = (1986) ILJ 115; R.M. Gurjar and Anr. v. High Court of Gujarat and others, AIR 1992 SC 2000; Suresh Kumar Sharma v. Municipal Council, Ambah and others, (1994) M.P.J.R. 198. The two decisions of this Court relied on State of M.P. v. Shankerlal and others, AIR 1980 SC 643. The last decision referred also to Arum Kumar Chatterji v. S. E. Railway and others, AIR 1985 SC 482 and K. Narayanan and Ors. v. R. Mahadeo and others, AIR 1994 SC 55.
5. In Shankerlal's case, AIR 1980 SC 643, the Supreme Court held that lecturers and teachers appointed in various Municipal Schools are officers and servants of Municipal Council and the State Government has power to transfer them under Section 94(1), (2) and (7) of the Municipalities Act, 1961. Arun Kumar Chatterji's case, AIR 1985 SC 482 dealt with the transfer of a railway clerk from N. E. Railway to S. E. Railway at his request. It was held that under the provisions of the Railway Establishment Manual, he is entitled to be placed in the seniority list below the existing confirmed official staff, but not below the temporary staff. In K. Narayanan's case, AIR 1994 SC 55 the Supreme Court held that rule providing for transfer from lower to higher cadre not by promotion, but by direct recruitment with retrospective effect is violative of Article 14 of the Constitution of India. These decisions do not have any significance in considering the question involved in the present cases.
6. In Dr. Vasant's case, 1986 MPLJ 286 = 1986 JLJ 115 the petitioner was appointed in the Indore Municipal Corporation and subsequently transferred to Ujjain Municipal Corporation. He challenged the transfer and the provisions of Section 58 of the Municipal Corporation Act, 1956 which enabled the transfer. The vires of the statutory provision was sustained. It was further held that transfer is a necessary condition of service and in exigencies' of public administration, transfer is made so that a Government servant who is known for his efficient work should not only be rendering his efficient services extending benefit to the persons residing in a particular locality or region, but should also render his services to the persons belonging to any corner of State and the people must get advantage of the best services. Relying on the decision in Paresh Chandra Nandi v. Controller of Stores, N. E. Railway, Pandu and others, AIR 1971 SC 359, this Court held that transfer of a permanent employee and consequent transfer of his lien cannot be challenged when the post to which he is transferred does not carry less pay even if his transfer materially affects his chances of promotion.
7. Paresh Chandra Nandi who was an employee of the N. E. Railway, was aggrieved by transfer to the department of employer of a temporary railway organisation, i.e. Food Supplies Organisation as that would affect his chances of promotion. The persons who were transferred were permanent employees enjoying liens in their respective posts and had been confirmed. Therefore, the Supreme Court held in Paresh Chandra Nandi v. Controller of Stores, N.E. Railway, Pandu and others, AIR 1971 SC 359, as follows :
'Ordinarily, their conditions of service, e.g. salary and seniority, could not be affected to their prejudice as a result of their transfer to any other department or wing. Once, therefore, they were transferred from one permanent post to another permanent post, they would be entitled to hold substantively the permanent posts to which they were transferred bringing along with them the seniority which they had in the posts from which they were transferred. If that were not so, the result of a transfer from one post to another would mean that a transferred employee would have de novo, from a scratch and would consequently stand last in the department to which he is transferred. In actual practice, therefore, no transfer can be effected from one department to another without materially affecting the chances of promotion of such an employee.'
The Court held that the competent authority had the power to transfer a railway employee even though he holds a permanent post, from one post to another and once he is so transferred, is entitled to lien in respect of that another post to which he is permanently posted as a result of transfer. Therefore, the petitioner could not contend that the transfer of others to his department was contrary to the rules or that the transfer of their liens was, in any manner, contrary to rules.
8. In Suresh Kumar Sharma's case, 1994 MPJR 198 employees of various Municipalities in the State were transferred by the State Government to other Municipalities in the State. This Court following the decision in Shankerlal's case, AIR 1980 SC 643, held that :-
'theoratically, therefore, the power does exist in the State to transfer them.'
This Court indicated that where such transfer is made in exigencies of public administration and the transfer is made in similar cadre, no grievance can be raised as it is well settled that an employee can challenge his transfer only when the order of transfer is vitiated by mala fides or in violation of statutory provisions. The Court referred to the observations in Shankerlal's case (supra) that:
'In case of employees getting small emoluments, power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Municipal employees getting small salaries.'
The Court noticed that the State Government had not demonstrated the justification for transfer and that the transfer order affects the seniority of transferred employees; that is because, each Municipal Council is an independent body, employees had no State-wise Gradation List and each Municipality had a separate Gradation List and, therefore, by order of transfer, their legitimate right of seniority and consequently their right of consideration for promotion are adversely affected. The Court relied on the observation of the Supreme Court in K. Narayanan's case, AIR 1994 SC 55, that transfer cannot adversely affect conditions of service and the observation in Arun Kumar Chatterji's case, AIR 1985 SC 482, that loss of Seniority of Government Servant with a Prospect of Loss of higher pay and emoluments is a matter of serious consequence to him. Since the employees had their seniority maintained in their respective Municipalities and there is no State Level Gradation or Seniority List, the Division Bench held that the seniority of the transferred employees and the right to be considered for promotion will be seriously affected and since right to be considered for promotion is a condition of service, the transfers were invalid.
9. Judicial Officers and staff of District Establishments of the judiciary belong to a class of their own and cannot be dealt with like other employees of the State. That is because of Article 235 of the Constitution which mandates that control over the District Courts and Courts subordinate thereto shall be vested in the High Court.
10. In R.M. Gurjar's case, AIR 1992 SC 2000, the Supreme Court held that under Article 235 of the Constitution besides Judicial Officers, ministerial officers and servants on the establishment of the subordinate courts are also subject to the control of the High Court. This position of law has been reiterated by the Supreme Court in an appeal which went up from a decision of this Court. In M. P No. 548/92, a Lower Division Clerk in the establishment of the District Court Indore challenged his transfer to Shajapur District. The power of the High Court to sanction such transfer was upheld by this Court. A similar order in M. P. No. 547/81 was challenged in S.L.P. (Civil) No. 891/83, the Supreme Court dismissed the S.L.P. on 23-1-1984, observing as under :
'S.L.P. is dismissed because we are of the view that the power of transfer for members of the staff of subordinate judicial service vests in the High Court as part of its control over District Court and other subordinate Courts under Article 235 of the Constitution and so far as seniority of the petitioner is concerned, it is made amply clear that seniority of the L.D.C. will not be affected by reason of transfer from Indore to Shajapur. If the petitioner has any other grievance, it would be open to him to make appropriate grievance to the High Court.'
11. Thus, it is beyond any doubt that the High Court, in exercise of its power of control under Article 235 of the Constitution, can sanction the transfer of any employee of the staff of District Judiciary from one district to another. It is also clear that when such transfer is made on administrative grounds, the employee carries with him his seniority in the post or cadre.
12. We may, in this connection, refer to a few other decisions. In Ramchandra Shankar Deodhar and Ors. v. The State of Maharashtra and others, AIR 1974 SC 259 vires of amendments to service rules was challenged on the ground that it affected the employee adversely. The amendment made promotion to the post of Dy. Collector Divisionwise and limited promotion to 50% of the total number of vacancies. The Supreme Court observed that:-
'The result was to reduce the chances of promotion available to the petitioners. It is now well settled by the decision of this Court in State of Mysore v. G.B. Purohit, C. A. No. 2281/1965 decided on 25-1-1967 (SC), that though a right to be considered for promotion is a service condition, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In Purohit's case, the districtwisc seniority of sanitary inspector was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. Thus, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J. (as he then was), speaking on behalf of this Court, observed 'it is said on behalf of the respondents that as their chances of promotion have been affected, their conditions of service have been changed to their disadvantage. We see no force in this argument, because chances of promotion arc not conditions of service.' It is, therefore, clear that neither the Rules of 30th July, 1959, nor the procedure for making promotions to the posts of Deputy Collector districtwise varies the conditions of service of petitioners to their disadvantage.'
13. In Mohammed Shujat Ali and Ors. v. Union of India and others, AIR 1974 SC 1631, a Constitution Bench of the Court dealt with a similar question :
'It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammed Bhakkar v. Krishna Reddy, 1970 Serv. L.R. 768 (SC), where this Court, speaking through Mitter, J. said : 'any rule which affects the promotion of a person relates to his condition of service.' But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion - the latter would certainly not be a condition of service.'
The Court,, for this purpose, relied on the decision in State of Mysore v. G.B. Purohit, C.A. No. 2281 of 1965 and the decision in Ramchandra Shankar Deodhar's case, AIR 1974 SC 259.
14. In Bakhshish Singh v. Union of India, AIR 1985 SC 1272, the Court considered the challenge against creation of certain posts which reduced the chances of promotion of certain employees. It was held that reduction in chances of promotion is not a violation of condition of service given in Sections 115 and 117 of the States' Reorganisation Act, 1956.
15. The High Court, under Article 235 of the Constitution of India, has control over the subordinate Courts, Judicial Officers, ministerial officers and employees of the establishments of the subordinate Courts. The High Court has power of transferring judicial officers and ministerial officers and employees in the establishments of subordinate Courts, as part of its control over the Courts under Article 235 of the Constitution of India. This is made clear in the order of the Supreme Court in Bakshish Singh's case, S.L.P. (C) No. 891 of 1983. It is true that in this State while the appointing authority for the posts of Deputy Clerks of Court and Clerks of Court obtaining in the subordinate Courts is the High Court, the appointing authority for the lower posts is the District Judge concerned. It is also true that the seniority of the staff below the level of Deputy Clerks of Court and Clerks of Court is districtwise and not Statewise; nevertheless as the Supreme Court has indicated, the High Court under its Constitutional power under Article 235 can transfer such officers and employees from the district to another. As a general principle, where such transfer is made in exigencies of administrative or in public interest, the transferred employee carries with him his seniority, though when the transfer is made on request, he loses his seniority. The right of an employee to carry with him his seniority on inter-district transfer on administrative exigencies or in public interest is part of his condition of service. Where he is deprived of the same, his right to be considered for promotion is seriously prejudiced. Where he carries with him his seniority, his right to be considered for promotion is not affected. Whenever a vacancy on a higher post arises in the district to which he is transferred, he has a right to be considered for promotion depending upon his seniority. Right to be considered for promotion, as the Supreme Court pointed out in Mohd. Shujat Ali's case, AIR 1974 SC 1631 is not to be confused with mere chances of promotion. While right to be considered for promotion is a condition of service, mere chance of promotion is not a condition of service. It is unfortunate that this distinction was not brought to the notice of the Bench which decided Suresh Kumar Sharma's case, 1994 MPJR 198. It is one thing to say that in the case of employees with small emoluments, power of transfer is to be sparingly exercised; it is quite a different to say that the power of transfer does not exist or cannot be exercised in administrative exigencies or in public interest. It is one thing to say that a transferred employee's chances of promotion are adversely affected; it is quite a different thing to say that his right to be considered for promotion or seniority is affected. When an employee is transferred on a permanent basis from one district to another, he carries with him his seniority as also the right to be considered for promotion when a suitable vacancy arises in the district to which he is transferred depending on his seniority. This is as much true of employees of the Municipal Councils or Municipal Corporations in the State as of employees of subordinate judicial establishments. The decisions in G. B. Purohit's case, CA. No. 2281 of 1965, Ram Chandra Shankar Deodhar's case AIR 1974 SC 259, Mohd, Shujat Ali's case, Bakshish Singh's case, S.L.P (C) No. 891/1983, were not brought to the notice of the Bench which decided Suresh Kumar Sharma's case, 1994 MPJR 198.
16. In these circumstances, the decision in Suresh Kumar Sharma's case, 1994 MPJR 198, has to be regarded as peri incuriam. We are bound to follow decisions of the Supreme Court referred to above which draw the distinction between 'right to be considered for promotion' and 'chances of promotion.' The contention that vacancy on higher post may arise sooner in the parent district and such vacancy may arise only much later in the district to which an employee is transferred, if at all, may affect the employee's chances of promotion but not his right to be considered for promotion, permanent transfer of seniority and transfer of lien. When such is the case, it cannot be said that the transferred employee's right to be considered for promotion is adversely affected. We, therefore, hold that members of staff of establishments of the subordinate courts in a particular district are liable to be transferred to another district, that the High Court has power to effect such transfer, the transfer does not affect his seniority or right to be considered for promotion and that the transfers cannot be impugned in the manner attempted by the petitioners. Points answered accordingly.
17. Points Nos. 4 and 5 :
a) In M. P. No. 2684 of 1993
(i) Dhaniram Ahirwar : The report of the District Judge discloses that he misbehaved with the District Judge and is in habit of misbehaving with supervisory staff. He provokes other employees of the District Court and is in habit of making false complaints.
(ii) Chhedilal Ahirwar : There were number of complaints against him from the Bar. He was transferred to Bijawar, he misbehaved with the District Judge.
The matter was examined by the Registry and on examination of complaints, the transfer was ordered on administrative grounds, on the recommendations of the Additional Registrar and approved by the Administrative Judge.
b) In M. P. No. 2765 of 1993
(i) L. P. Shukla : He is in habit of instigating employees. His two sons were appointed in Civil Courts at Durg and Jabalpur. Since the work of those was found unsatisfactory, the services were terminated, that made him instigate the employees and is not preforming his job and whiles away time chatting without doing any job.
(ii) R. L. Mishra : He is totally disinterested in his job. He indulges in blackmailing Judges. He was posted in Library. He did not perform his job as Librarian. He was recommended for compulsory retirement. However, Administrative Judge ordered for his transfer.
c) In M. P. No. 2769 of 1993 :
i) Ramnath Chaurasia and ii) Krishna Kumar Sanodia : Complaints of serious insubordination by District Judge. Character roll warning and censure awarded had no effect. Administrative Judge approved transfer.d) In M. P. No. 2776 of 1993 :
i) Kamal Kishore Gupta, ii) Shesh Mani Verma and iii) Mohd. Habib Khan : Against these employees reports of serious insubordination were received.e) In M. P. No. 2777 of 1993 :i) Ram Swaroop Chaurasia and ii) Anupam Jain : Against the petitioner No. 1 departmental enquiry is pending. He did not hand over charge and removed papers from file. The second petitioner is totally disinterested in his job. The petitioners are local persons and instigate subordinates, for their vested interests.
The files indicate that petitioners' long presence in the parent districts has led to development of vested interest and their continuance was not desirable. Therefore, the contention that there has been violation of principles of natural justice or that there are no justifiable reasons for the transfers is untenable.
18. Learned counsel for the petitioners further submitted that some of the petitioners are office bearers of the district units of the M. P. Judicial Employees' Association and that there are government orders protecting such office-bearers from transfer. It is not the petitioners' case that such governments' orders were passed in consultation with the High Court or that the High Court has adopted those orders. Such Government orders cannot, therefore, interfere with the exercise of the control by the High Court over the employees under Article 235 of the Constitution. Even if it is accepted that ordinarily important office bearers of such associations may not be transferred, this principle must give way to exigencies of administration and public interest, particularly so, if employees somehow continue to be office bearers for long periods and their continuance in particular districts is not compatible with needs of administration and public interest. Points answered accordingly against petitioners.
19. Point No. 6 : Learned counsel contended that the petitioners have submitted representations to the Registrar against their transfers and their representations have not been considered. We will assume for the present that such representations have been made. Almost immediately after the transfers, these writ petitions were filed and initially implementation of transfer orders was stayed. Subsequently, the stay orders were vacated. In these circumstances, during the pendency of the writ petitions it would not have been appropriate for the High Court on the administrative side to deal with the representations. We leave it to the petitioners to press their representations submitted on the administrative side. If they have not joined duty in the posts to which they have been transferred, they shall do so within fifteen days and thereupon inform the Registrar that they are pressing their representations in which case we have no doubt that the Registrar will process the same and seek orders from the appropriate authorities.
20. The writ petitions are accordingly dismissed, but in the circumstances, without any order as to costs.