# Mohd. Mustaqueem v. State of U.P. & Ors. 596 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 4 ILRA 595
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-09
- **Case number:** Writ A No. 10004 of 2021
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-mustaqueem-v-state-of-u-p-ors-596-indian-law-reports-allahabad-series-49983
- **Pages:** 25

## Headnote

A. Service Law- U.P. Urdu Translator-cumJunior Clerk Service Rules, 1994-Rule 5Transfer-Validity- Urdu Translator-cumJunior Clerk /Petitioner was appointed to
a service, where is the District Magistrate
was the appointing authority-The Medical
Service Rules, 1994 which govern the
service of the petitioner by virtue of the
Rules, 1994 , provides that service under
the Medical Service Rules, 1994 means the
Uttar Pradesh Medical Health and Family
Welfare Department (Subordinate Office)
Clerical Cadre Service-The Rules clearly
make the petitioner part of a State Level
Service and not a District Cadre ServiceThus,
there
is
no
impediment
in
transferring the petitioners in terms of the
orders impugned dated 15 July 2021
under challenge.(Para 1 to 61)

The petition is disposed of. (E-6)

## Text

_Characters 0–39,732 of 84,871. This is a partial read: ask again with offset=39732 for what follows._

4 All. Mohd. Mustaqueem Vs. State of U.P. & Ors.
595
are given in the impugned order then it will
not be possible to know as what was going
in the mind of the decision making
authority on the basis of which he has come
to the conclusion and passed the impugned
order.

21. But in the present case, letter of
the respondent dated 13.7.2004 regarding
fixing of a date as 28.7.2004 for personal
hearing and for cross examination by the
petitioner, was not conveyed to the
petitioner prior to the date fixed i.e.
28.7.2004 and it was conveyed only on
9.8.2004 through registered letter dated
4.8.20224 much after date fixed for
personal hearing and for cross examination.

Thereafter,
the
enquiry
officer
prepared the enquiry report without giving
any opportunity of personal hearing to the
petitioner and without giving him any
opportunity to prove his innocence by
means of various documents as also to
cross examine the witnesses which were
sought to be relied upon in support of the
charges. Even the reply submitted by the
petitioner has not been considered by the
respondent before passing the impugned
order. Perusal of the record produced
before
this
Court
on
30.10.2022
establishes that no documentary evidence
is available in regard to service of notice
dated 13.7.2004 to the petitioner. In this
view of the matter, there is utter disregard
of principles of natural justice in the
matter and the impugned order passed by
the respondent is bad in law and is in
violation of principles of natural justice.

22. The rules of natural justice
require that a party must be given the
opportunity
to
adduce
all
relevant
evidence upon which he relies, and further
that the evidence of the opposite party
should be taken in his presence and that he
should be given the opportunity of crossexamining the witnesses examined by that
party. Not providing the said opportunity
to cross-examine the witnesses, would
violate the principles of natural justice.

23. It is admitted position that the
petitioner
retired
from
service
on
29.7.2004 and therefore, there is no
provision for conducting a disciplinary
enquiry after his retirement nor any
provision stating that in case misconduct
is established, a deduction could be made
from the retiral benefits.

24. Considering in totalities of facts
and circumstances of the case as also the
fact that after retirement of an employee,
no
disciplinary
proceeding
can
be
continued, the order dated 29.9.2004 is
quashed. The respondents are directed to
release all post retiral benefits to the
petitioner admissible to him as per law
within a period of of six weeks from the
date of production of a certified copy of
this order.

25. In the result, the writ petition is
allowed.
----------
(2023) 4 ILRA 595
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2023

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Writ A No. 10004 of 2021
with other connected cases

Mohd. Mustaqueem ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
596 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Sanjay Kumar Pundir

Counsel for the Respondents:
Sri M.C. Chaturvedi, Addl. Advocate General,
with Sri Ramanand Pandey and Sri Ankit Gaur,
Standing Counsel

A. Service Law- U.P. Urdu Translator-cumJunior Clerk Service Rules, 1994-Rule 5Transfer-Validity- Urdu Translator-cumJunior Clerk /Petitioner was appointed to
a service, where is the District Magistrate
was the appointing authority-The Medical
Service Rules, 1994 which govern the
service of the petitioner by virtue of the
Rules, 1994 , provides that service under
the Medical Service Rules, 1994 means the
Uttar Pradesh Medical Health and Family
Welfare Department (Subordinate Office)
Clerical Cadre Service-The Rules clearly
make the petitioner part of a State Level
Service and not a District Cadre ServiceThus,
there
is
no
impediment
in
transferring the petitioners in terms of the
orders impugned dated 15 July 2021
under challenge.(Para 1 to 61)

The petition is disposed of. (E-6)
(Delivered by Hon'ble Rajesh Bindal, C.J.,
& Hon'ble J.J. Munir, J.)

ORDER

1. This order will answer the question
referred to us by the learned Single Judge
in Writ-A Nos. 11430 of 2021, 10004 of
2021 and 10365 of 2021 vide order dated
October 26, 2021. In Writ-A No. 11378 of
2022, the same question arises as that in the
above writ petitions, which the learned
Single Judge has adjourned awaiting our
answer vide order dated August 4, 2022.
The answer to the question in the three writ
petitions, first mentioned, would also serve
the purpose of Writ-A No. 11378 of 2022.
After answering the question posited to us
by the learned Single Judge, the writ
petitions would have been placed on board
before the learned Single Judge, holding
determination over writ petitions of this
nature along with our answer. But, what we
find is that there are also under challenge
before us judgments of the two learned
Single Judges of this Court deciding the
same issue, with reference to which the
question has been referred to us in the three
writ
petitions,
already
mentioned. A
challenge to the judgments of the learned
Single Judge in two writ petitions has been
laid by the unsuccessful writ petitioners
vide Special Appeal No. 52 of 2022 and
Special Appeal Defective No. 97 of 2022.
Since we would be required to decide those
writ petitions finally, the result whereof
would depend upon the answer to the
question referred to us in the writ petitions
by the learned Single Judge, we are of
opinion that no useful purpose would be
served by sending our answer to the learned
Single Judge, pursuant to the order of
reference in the three writ petitions. It
would only entail avoidable wastage of
time and resource.

2. We, therefore, propose to dispose
of writ petitions as well by this judgment,
in accordance with our answer to the
question referred. Special Appeal Nos. 522
of 2022 and 523 of 2022 arise out of orders
of the learned Single Judge proposing to
frame charges for violation of the orders
passed by the Single Judge on the writ side.
Those appeals too would be disposed of
recording our reasons by this common
judgment and order.

3. Since common questions of fact
and law are involved in all the four writ
petitions and the four special appeals, we
proceed to notice relevant facts and the
essence of lis between parties giving rise to
all these matters from the records of Writ-A
4 All. Mohd. Mustaqueem Vs. State of U.P. & Ors.
597
No. 10004 of 2021. This course of action
has been adopted because parties have
copiously exchanged affidavits in the said
petition. Accordingly, Writ-A No.10004 of
2021, which has indeed been heard as the
leading case, shall be treated as such.
Nevertheless, in order to appreciate the
individual facts leading to the writ petitions
and the appeals, arising out of judgments of
the learned Single Judges on the writ side
and in the exercise of contempt jurisdiction,
a summary of the nature of proceedings
involved in each cause, the grievance and
the relief sought are being shown in tabular
form:

Sr.
No.
Case
Details
Arises out of
1
Writ-A No.
10004
of
2021
Transfer order dated
15.07.2021 passed by
the
Director
(Administration),
Medical
&
Health
Services,
U.P.
at
Lucknow
2
Writ-A No.
10365
of
2021
Transfer order dated
15.07.2021 passed by
the
Director
(Administration),
Medical
&
Health
Services,
U.P.
at
Lucknow
3
Writ-A No.
11430
of
2021
Transfer order dated
15.07.2021 passed by
the
Director
(Administration),
Medical
&
Health
Services,
U.P.
at
Lucknow
4
Writ-A No.
11378
of
2022
Transfer order dated
28.06.2022 passed by
the
Additional
Director of Education
(Basic), U.P. Prayagraj
and the relieving order
dated
25.07.2022
passed by the District
Basic
Education
Officer, Basti
5
Special
Appeal (D)
No. 97 of
2022
Writ-A No. 11560 of
2021 filed against the
transfer order dated
15.07.2021 passed by
the
Director
(Administration),
Medical
&
Health
Services,
U.P.
at
Lucknow
6
Special
Appeal No.
52 of 2022
Writ-A No. 10088 of
2021 filed against the
transfer order dated
15.07.2021 passed by
the
Director
(Administration),
Medical
&
Health
Services,
U.P.
at
Lucknow
7
Special
Appeal No.
522
of
2022
Contempt Application
(Civil) No. 1452 of
2022 filed for noncompliance of orders
dated
07.09.2021,
14.09.2021
and
08.10.2021 passed in
Writ-A No. 10004 of
2021, which has been
filed
against
the
transfer order dated
15.07.2021 passed by
the
Director
(Administration),
Medical
&
Health
Services,
U.P.
at
Lucknow
8
Special
Appeal No.
Contempt Application
(Civil) No. 1453 of
598 INDIAN LAW REPORTS ALLAHABAD SERIES
523
of
2022
2022 filed for noncompliance of orders
dated
18.08.2021,
14.09.2021
and
08.10.2021 passed in
Writ-A No. 10365 of
2021, which has been
filed
against
the
transfer order dated
15.07.2021 passed by
the
Director
(Administration),
Medical
&
Health
Services,
U.P.
at
Lucknow

The Question Referred

4. In the leading case and in
connected Writ-A Nos. 10365 of 2021,
11430 of 2021 and 11378 of 2022, by an
order recorded in Writ-A No. 11430 of
2021, the following question of law has
been referred to us by the learned Single
Judge:

"Whether the post of Urdu Translatorcum-Assistant Clerk is a District Level
Cadre Post and, therefore, its incumbent
can not be transferred out side the
District?"

Submissions
on
behalf
of
the
petitioner

5. The petitioner is an Urdu
Translator-cum-Junior Clerk posted in the
office of Chief Medical Officer, Muzaffar
Nagar. Vide the order impugned dated July
15,
2021
passed
by
the
Director
(Administration),
Medical
and
Health
Services, U.P., Lucknow, the petitioner was
transferred from the office of the Chief
Medical Officer, Muzaffar Nagar to the
office of the Chief Medical Officer,
Shahjahanpur. The order dated July 15,
2021 (Annexure No. 1) to the writ petition,
orders transfer of various employees, such
as Store Keepers, Stenographers, Urdu
Translators-cum-Junior Clerks, from one
district to another. The total number of
employees transferred by the said order
were 984. The petitioner's name figures at
serial No. 980 of the impugned order dated
July 15, 2021.

6. The short case of the petitioner is
that he holds a District Level Cadre Post
and, therefore, cannot be transferred
outside the district, where he has been
selected and appointed. The posts of Urdu
Translators-cum-Junior Clerks were created
by Government Order No. 80सीएम/47-का-494-15-10-1994 dated August 20, 1994,
issued in the name of the Governor by a
Secretary to the State Government. Service
rules were made by the Governor for these
Urdu Translators under the proviso to
Article 309 of the Constitution, known as
The Uttar Pradesh Urdu Translator-cumJunior Clerk Service Rules, 1994 (for short,
'the Rules of 1994'). The petitioner has
drawn the attention of the Court to the
Government Order dated August 20, 1994,
which created a total of 5061 posts of Urdu
Translators-cum-Junior Clerks at three
levels i.e. the State Headquarters, the
Commissionerate
and
the
District
Headquarters.
Para
No.
4
of
the
Government Order indicates that the
appointing authority for the newly created
post of Urdu Translators shall be the same
at the relevant level as that for a Junior
Clerk. Para No. 5 of the Government Order
shows that for appointments made at the
State
Headquarters,
the
appointing
authority would be the Secretary to the
Government
in
the
Department
of
Personnel. The appointments at the level of
the Commissionerate would be made by the
4 All. Mohd. Mustaqueem Vs. State of U.P. & Ors.
599
Commissioner as the appointing authority,
and at the level of District Headquarters, by
the District Magistrate.

7. Along with the Government Order,
there are lists, appended as Annexures I, II,
III and IV, describing the Head of the
Department/ Head of Office together with
their Establishment, where posts of Urdu
Translators were sanctioned. At the State
Headquarters, the Establishments along
with Head of the Department/ Office are
detailed in a list carried in Annexures I and
II to the Government Order. Likewise, at
the Commissionerate, the Establishments,
where posts of Urdu Translators have been
created, have been detailed in Annexure III
to the Government Order. In Annexure IV
to
the
Government
Order,
the
Establishments at District Level, where
posts of Urdu Translators were created,
have been mentioned. At the District
Headquarters, there is a list of 37 such
Establishments and offices, besides the
Collector's office, the Tehsil, the Block and
each Police Station. It is one or the other
Establishment or office detailed in the three
lists appended to the Government Order
that an Urdu Translator-cum-Junior Clerk
can be appointed. After creation of posts of
Urdu Translators-cum-Junior Clerks by the
Government Order dated August 20, 1994,
the Governor made the Rules of 1994, that
were published in the Official Gazette on
September 9, 1994.

8. It is the petitioner's case that an
Advertisement No. 309 dated September
25, 1994 was issued by the District
Magistrate,
Muzaffar
Nagar
inviting
applications from eligible persons for
appointment to posts of Urdu Translatorcum-Junior Clerk with the number of posts
being specified as 79. The petitioner
applied
in
response
to
the
said
Advertisement and appeared in the written
examination held for the purpose. He was
selected by the Selection Committee
headed by the District Magistrate, Muzaffar
Nagar as envisaged under Rule 17 of the
Rules of 1994. The petitioner being found
fit for selection, a Memo No. 487/ Samanya
Sahayak, dated April 3, 1995 was issued by
the office of the District Magistrate, which
the petitioner says gave him appointment
on the post of an Urdu Translator-cumJunior Clerk in the office of the Chief
Medical Officer, Muzaffar Nagar. The said
appointment
order,
according
to
the
petitioner, directed him to join services at
the office of the Chief Medical Officer,
Muzaffar Nagar.

9. It is argued on behalf of the
petitioner that the procedure prescribed for
filling up vacancies under the Rules of
1994 shows that the post held by the
petitioner is a Group-C post, of which the
District Magistrate, where the petitioner
was selected, is the appointing authority.
The service to which the petitioner has
been appointed is a District Level Cadre
and members of the said service, according
to the strength of the Cadre, are to be
allocated
to
different
offices
and
Establishments mentioned in Annexure 3 to
the Government Order dated August 20,
1994. The petitioner, therefore, cannot be
transferred outside the district.

10. The learned Counsel for the
petitioner has emphasized on the definition
of the term 'service' defined under Clause
(f) of Rule 5 of the Rules of 1994, which
says that "service" means the service of
Urdu Translator-cum-Junior Clerk in a
Government
Department
or
office,
constituted under relevant service rules or
executive instructions, as the case may be.
The submission of the learned Counsel is
600 INDIAN LAW REPORTS ALLAHABAD SERIES
that by appointment to a particular
Government Department or office, the
Urdu Translators do not become part of the
Cadre of Junior Clerks in that office. They
do not get the benefit of promotion under
the relevant service rules applicable to the
Department or office, to which they are
appointed as Urdu Translators-cum-Junior
Clerks. It is emphasized that the identity of
the service of Urdu Translators-cum-Junior
Clerks is distinct and different from the
other Junior Clerks, who may be part of
that Cadre in a Government Department or
office. The service of the petitioner is that
of Urdu Translators-cum-Junior Clerk, but
not a Junior Clerk in the office or the
Government Department, where he/ she has
been appointed. This, he submits, is evident
from the definition of service, found in
Clause (f) of Rule 5 of the Rules of 1994. It
is also emphasized that Rule 6 shows that
the strength of service, that is to say, of
Urdu Translators-cum-Junior Clerks in
each Department or office, has to be
determined by the State Government from
time to time under the relevant service rules
or executive instructions. This is a clear
indicator, according to the learned Counsel
for the petitioner, that the petitioner or for
that matter any Urdu Translator-cum-Junior
Clerk is very different from a Junior Clerk
in the regular Cadre in a Government
Department or office. The submission,
therefore,
is
that
the
petitioner's
appointment being one made to a District
Level Cadre post by the District Magistrate,
Muzaffar Nagar, he cannot be transferred to
any other district. He may be transferred to
any Establishment of the Chief Medical
Officer within the district. In support of his
contention, the learned Counsel for the
petitioner has placed reliance on the
decision of a learned Single Judge in
Trabuddin and others v. Chief Secretary,
U.P. Shasan Secretariat and others 2014
(11) ADJ 318, where this Court, after
noticing the Rules of 1994 and the
Government Order dated August 20, 1994,
held as under:

"17. With respect to transferability of
post, it is not disputed that Rules, 1994 do
not contemplate any such thing. State
Government has clarified vide order dated
25.8.2006 that neither the posts nor the
personnels, working as Urdu Translatorscum-Junior Clerk, are transferable or
should normally be transferred. In view of
this specific stand taken by respondent
State of U.P., I do not find as to how Police
Headquarters can take upon itself the task
of laying down conditions of service or
policy decision with respect to service
matters of petitioners, contrary to the
decision taken by State Government, who
is principal body having legislative power
to lay down conditions of service of these
personnel. A transfer policy with respect to
Urdu Translators-cum-Junior Clerk, no
doubt is within the realm of State
Government. If it decides to make it non
transferable, U.P. Police Headquarters, in
my view, does not possess any power and
none has been shown by respondentslearned Standing Counsel whereby it can
take a contrary policy decision. The
decision taken in respect of Police
personnel, is by virtue of power specifically
conferred under Act, 1861 and rules and
regulations framed thereunder but no such
power has been conferred with respect to
civilian staffs and unless such power is
vested
with
them
(U.P.
Police
Headquarter), I do not find that such a
policy decision can be taken by it (Police
Headquarters) in respect of transfer of
persons working as Urdu Translators-cumJunior Clerk. The Police Headquarters'
circular
dated
28.7.1997
is
clearly
unauthorised,
without
jurisdiction
and
4 All. Mohd. Mustaqueem Vs. State of U.P. & Ors.
601
illegal, particularly when State Government
has already made it clear that posts and
personnels making as Urdu Translator cum
Junior Clerk are not transferable."

11. The learned Counsel for the
petitioner has further placed reliance upon
a decision of the Uttarakhand High Court in
Ramesh Chandra Joshi & another v.
Iqbal Ahmad & others, 2016 SCC
OnLine Utt 1943. Attention of the Court
has been drawn to Paragraph Nos. 26 and
27, which read as under:

"26. Now, we may notice some of the
Government Orders, which came to be
passed. Before the 1994 Rules were
framed, order dated 20.08.1994 was passed.
Reliance is placed on the said order by the
writ petitioners and the intervener. We have
already extracted the said order. The order
was passed at a time when the Rules were
not enacted. The order, apparently, came to
be passed in the context of the decision of
the Government to link Urdu with the
livelihood and to create a post of Urdu
Translator in the offices at the district level
inter alia as per the details, which were
mentioned. Number of posts were created.
Further one post was created in each of the
offices mentioned in the enclosed list. In
short, it contemplated appointments being
made in vacant posts of Junior Clerks by
converting the same to the posts of Urdu
Translator-cum-Junior
Clerk
in
the
mentioned pay-scale. This is seized upon
by the writ petitioners and the intervener to
contend that the persons were appointed as
Urdu Translator-cum-Junior Clerk in the
vacant posts of Junior Clerk and, from this,
an inference is sought to be drawn that they
were inseparably interconnected. It is true
that a question may arise that, when the
vacant post of Junior Clerk is not filled-up
by appointing a Junior Clerk but by
appointing an Urdu Translator-cum-Junior
Clerk, who would discharge the functions
of the Junior Clerk. Could it not be said
that the Urdu Translator-cum-Junior Clerk
would be expected to carry out the work of
Junior Clerk besides, of course, doing
translation work and, therefore, he should
be treated as a Junior Clerk? At first blush,
the argument appears to be impressive; but,
there is another way of looking at it. What
was intended by the Government having
regard to its declared intention to provide
for Urdu Translators, it was sought to be
done by converting the vacant posts of
Junior Clerk and by appointing Urdu
Translators-cum-Junior Clerks, as provided
in the enclosed list, in each of the offices.
This could be treated as a method of
making the appointments. That is to say,
instead of creating new posts for Urdu
Translators-cum-Junior
Clerks,
Government decided to convert the vacant
posts and to appoint them as Urdu
Translators-cum-Junior Clerks. Had it been
the intention of the Government that the
post of Urdu Translator-cum-Junior Clerk
would be treated as Junior Clerk, nothing
stood in the way of the Government
amending the 1980 Rules and providing for
the post of Urdu Translator-cum-Junior
Clerk also within its ambit. This not being
done, it let the state of the law remain
unamended, under which law, only the
Junior Clerks and other ministerial staff
could be considered for promotion to the
post of Senior Clerk. The mere fact that the
vacancies held by Junior Clerks were made
use of for appointing Urdu Translatorscum-Junior Clerks cannot be the basis for
treating them as part of the same cadre.
Equally bereft of merit is the argument
based on clause (2) of the order dated
20.08.1994,
which
also
contemplates
appointment of Urdu Translator-cum-Junior
Clerk being made to the first vacancy,
602 INDIAN LAW REPORTS ALLAHABAD SERIES
where the post of Junior Clerk is not
vacant. It is also contemplated, no doubt,
that the appointing authority for the post of
Junior Clerk will be the appointing
authority for the post of Urdu Translatorcum-Junior Clerk; but, we have already
noticed that, even in the Rules, the same
provision has been incorporated and it may
not advance the case of the writ petitioners
and the intervener. We find from Clause (7)
of the said order that the rules to be
enforced
regarding
conditions
of
service/selection procedure for the posts of
Urdu Translator-cum-Junior Clerk was to
be issued separately. It is, thereafter, that
the 1994 Rules, which we have already
noticed, came into being.

27. The next order, which is produced,
is order dated 30.09.1995. It is an office
order. It indicates certain candidates being
selected and being appointed to the posts of
Urdu Translator-cum-Junior Clerk and the
same being filled-up, apparently, in terms
of order dated 20.08.1994."

12. Reliance has next been placed on
behalf of the petitioner on the decision of
the Supreme Court in Som Raj and others
v. State of Haryana and others, (1990) 2
SCC 653. Attention of this Court has been
drawn to Paragraph No. 5, which reads as
under:

"6. A resume of these rules clearly
shows that for the appointment of all the
posts including Junior Clerks in the Head
Office, the appointing authority is the
Director. All appointments to the post of
Junior Clerks other than Head Office shall
be by the concerned Head Office. As per
the appendix, the staffing pattern in the
office of the Director of Agriculture and the
Subordinate Offices is entirely different.
The only common element is the Senior
Clerks. The seniority is to be maintained on
the basis of the substantive appointment to
the respective cadres. The seniority of the
members of the service shall, in each class
of appointment shown in the appendix be
determined by the date of their substantive
appointments or promotion or otherwise to
permanent vacancies in such a class. The
method
of
appointment
has
been
adumbrated under Rule 7(1)(I) to (L) by
promotion from amongst the persons
working in the respective subordinate posts
in the respective offices in the first
instance, or by selection from amongst
persons working in the government offices
including Subordinate Offices and in some
cases by the direct recruitment. Thereby it
is clear that for filling up the vacancies
arising in the post of Superintendent,
Assistants and Senior Clerks, the persons
working in the Subordinate Offices or the
government offices are the feeder channels,
or in some case by direct recruitment. Subrule (2) of Rule 7 makes the matter clear
that they have got right to be considered,
but it is strictly by selection and they have
no claim to the appointment as of right. It is
open to the government to constitute
different cadres in any particular service as
it
may
choose
according
to
its
administrative
convenience
and
expediency. The office of the Director is
the apex office obviously to control and
oversee the functioning of the Subordinate
Offices and the other allied departments
under
his
control
monitoring
the
implementation
of
the
government's
agricultural programmes. It may not be
necessary to maintain a common cadre of
the employees of the Directorate and the
Subordinate Offices. Each cadre is a
separate service or a part of the service
sanctioned for administrative expediency.
Therefore, each may be a separate unit and
the posts allocated to the cadre may be
permanent or temporary. It is seen from the
4 All. Mohd. Mustaqueem Vs. State of U.P. & Ors.
603
appendix that in the office of the
Directorate there is one Superintendent,
three Head Assistants, four Assistants, two
Stenographers, seven Senior Clerks, and
twelve Junior Clerks. In the Subordinate
Offices, there is one Superintendent, seven
Head Clerks and two Senior Clerks. This is
obviously on the basis of administrative
need. No doubt the office of the Directorate
and the Subordinate Offices have been
compendiously shown in Section 6 of the
Appendix. That does not by itself mean that
office of the Directorate and Subordinate
Offices are treated under the Rules as one
unit or at par, as contended for by Shri P.P.
Rao. As pointed out in the beginning, the
Director had committed some irregularities
at the time of initial appointments in the
year 1973 when he picked up five persons
out of the select list of the candidates and
appointed them in the Directorate of
Haryana Government deviating from the
order of merit prepared by the Board. They
were selected at a common selection by the
Recruitment Board along with other
candidates who stood higher in the order of
merit prepared by the Selection Board. But
this was done in the year 1973 and the
appointments have not been challenged till
date of filing of the writ petition in 1979.
Even in the writ petition no challenge was
made. This is pressed into service only to
show that the appellants are similarly
situated with them. After the appointments
were made and the candidates joined in the
respective posts for consideration for
promotion the Rules occupy the field and
the claims are to be considered according to
Rule 7. Therefore, though we may not
agree with the learned counsel for the State
that the Director had absolute discretion to
pick and choose arbitrarily and make
appointment of the posts, yet undoubtedly,
he had power to appoint them. Normally
the order of appointment would be in the
order of merit of candidates from the list
and must be in accordance with rules. His
exercise of power should not be arbitrary.
The absence of arbitrary power is the first
postulate of rule of law upon which our
whole constitutional edifice is based. In a
system
governed
by
Rule
of
Law,
discretion
when
conferred
upon
an
executive authority must be confined
within clearly defined limits. The Rules
provide the guidance for exercise of the
discretion in making appointment from out
of selection lists which was prepared on the
basis of the performance and position
obtained at the selection. The appointing
authority is to make appointment in the
order of gradation, subject to any other
relevant rules like, rotation or reservation,
if any, or any other valid and binding rules
or instructions having force of law. If the
discretion
is
exercised
without
any
principle or without any rule, it is a
situation amounting to the antithesis of
Rule of Law. Discretion means sound
discretion guided by law or governed by
known principles of rules, not by whim or
fancy or caprice of the authority. We refrain
from going into the correctness of the
choice made by the Director due to laches
in not assailing the correctness of the
appointment for well over six years. The
validity of the rules have not been
questioned. The only question is, as stated
earlier, whether the employees working in
the Head Office and the Subordinate
Offices are entitled to common seniority.
The Rules themselves made a distinction
between the persons appointed in the
Directorate and the Subordinate Offices as
separate cadres and the subordinate cadre
in some cases is the feeder cadre for
promotion to the post in the Head Office. In
this view, by no stretch of imagination, the
appellants can be considered to be equally
placed for treating them at par with the
604 INDIAN LAW REPORTS ALLAHABAD SERIES
Directorate employees for being treated as
being in a common cadre. There is
reasonable nexus to differentiate the two
cadres. Therefore, the classification cannot
be said to be arbitrary violating Articles 14
and 16 of the Constitution."

13. It is submitted by the learned Counsel
for the petitioner on the strength of the
aforesaid decision in Som Raj (supra) that
though Junior Clerks in that case for posts
in the Head Office, that is, the Directorate
of Agriculture and those in the subordinate
offices of the Directorate were selected
through a common selection by the
Recruitment Board along with other
candidates, but those appointed to the Head
Office of the Directorate were held not to
constitute a single cadre with the Clerks
appointed to the subordinate offices. It was
held that in the same service, it is open to
the Government to constitute different
cadres as it may choose according to its
administrative
convenience
and
expedience. It is urged on the basis of the
said holding that here the definition of
service to be found in the Rules of 1994 is
with
reference
to
each
Government
Department or office and where the
Establishment to which an Urdu Translator
has been appointed, is a District Level
Establishment or office, the post held by
the Urdu Translator is a District Level
Cadre Post notwithstanding that the service
of Urdu Translators-cum-Junior Clerks,
according to Rule 6 of the Rules of 1994, in
each Government Department or office
under the relevant service rules applicable
to that Department or office, may be a State
service permitting transfer from one district
to another for other incumbents governed
by the service rules in that Department or
office. The Urdu Translators, according to
the learned Counsel for the petitioner, are a
distinct or different class and they are not
entitled to many other benefits such as
promotions, etc., as the other Junior Clerks
in
the
regular
Cadre
of
particular
Government Departments or offices. It is in
that context that the decision of the
Division Bench of the Uttarakhand High
Court in Ramesh Chandra Joshi (supra)
has been emphasized.

Submissions
on
behalf
of
the
respondents

14. Mr. M.C. Chaturvedi, learned
Additional Advocate General assisted by
Mr. Ramanand Pandey and Mr. Ankit Gaur,
learned Standing Counsel appearing on
behalf of the State, have submitted that the
petitioner's case that he is a member of a
District Level Cadre Post under the Rules
of 1994, is based on a complete misreading
and misunderstanding of the Rules of 1994.
According
to
the
learned Additional
Advocate General, the District Magistrate,
under the Rules of 1994, is not at all the
petitioner's appointing authority. He is only
the Chairman of the Selection Committee,
comprising five Members, including the
District Magistrate envisaged under Rule
17. It is argued that the appointing authority
would be an authority in one Government
Department or the other or one office or the
other, where an Urdu Translator is
appointed. The Government Departments
and offices are varied and different under
the Government Order dated August 20,
1994, whereby specified number of posts
have
been
created
for
Government
Departments
and
offices
at
the
Headquarters, the Divisional Headquarters
of the Commissionerate and the District
Level. To each of such posts, according to
the learned Additional Advocate General,
selections have to be made by the Statutory
Selection Committee constituted under
Rule 17 of the Rules of 1994. Post selection
4 All. Mohd. Mustaqueem Vs. State of U.P. & Ors.
605
by the Statutory Selection Committee, the
appointing
authority
in
a
particular
Government Department or office would
offer appointment to the selected candidate
and issue an appointment letter to him. The
candidate once appointed in a particular
Government Department or office as an
Urdu Translator-cum-Junior Clerk would
be governed by the service rules applicable
to the Cadre of Junior Clerks there. In the
submission of Mr. Chaturvedi, if the
Government Department or office happens
to be governed by Rules, where employees
holding a Group-C post in the Cadre of a
Junior Clerk are transferable, an Urdu
Translator-cum-Junior Clerk appointed to
such a Government Department or office,
would be liable to be transferred like any
other holder of a Group-C post, or more
particularly, a Junior Clerk.

15. In the present case, the learned
Additional Advocate General has submitted
that the petitioner was appointed as an
Urdu Translator-cum-Junior Clerk vide
order dated May 31, 1995 issued by the
Director (Administration) in the office of
the Director General, Medical Health and
Family Welfare, Government of U.P. at
Lucknow, acting on the recommendation of
the Statutory Selection Committee as an
Urdu Translator-cum-Junior Clerk in the
office of the Chief Medical Officer,
Muzaffar Nagar. A copy of the said
appointment letter is annexed to the
Supplementary
Affidavit-II
dated
September 28, 2021, filed on behalf of
respondent No. 3. It is submitted by the
Additional Advocate General that this
appointment letter was deliberately not
brought on record by the petitioner in the
writ petition as it would indicate that the
petitioner's appointing authority is the
Director (Administration), Medical and
Health Services, U.P., Lucknow and not the
District Magistrate, Muzaffar Nagar. It is
urged that the petitioner's appointment as
an Urdu Translator-cum-Junior Clerk is
governed by Rule 3-Ka of the U.P. Medical
Health and Family Welfare Department
(Subordinate Office) Clerical Cadre Service
Rules, 1994 (for short, 'the Medical Service
Rules, 1994) read with Rule 5(a) of the
Rules of 1994.

16. A third Supplementary Affidavit
dated October 4, 2021 has also been filed
on behalf of respondent No. 3, bringing on
record a xerox copy of the petitioner's
service-book, which shows that vide order
dated August 18, 2008 passed by the
Director General, Medical and Health
Services, U.P., Lucknow, the petitioner has
been promoted to the post of Urdu
Translator-cum-Senior Clerk, with his post,
in the pay scale of 4000-100-8000. It is
urged on the basis of service rules
applicable to the petitioner that he is an
Urdu Translator-cum-Senior Clerk in the
Establishment of the Director General,
Medical
and
Health
Services,
U.P.,
Lucknow. His appointing authority is the
Director (Administration), Medical and
Health Services, U.P., Lucknow. The
petitioner's service, which is a clerical
cadre post governed by Medical Service
Rules, 1994, cannot be said to be a District
Level Cadre Post.

17. In support of his contention, the
learned
Additional
Advocate
General
appearing for the respondents has placed
reliance upon an unreported decision of the
learned Single Judge in Akeel Ahmad v.
State of U.P. and others, Writ - A No.
14945 of 2018, decided on July 17, 2018,
where it has been held:

"6. Petitioner in the present case
appears to be working in the office
606 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned for the last more than 10 years.
His appointment is to the post of Urdu
Translator-cum-Junior Clerk and he has
been transferred against a specific post of
Urdu Translator-cum-Junior Clerk existing
in the same department i.e. the Transport
Department of the State.

7. The order of transfer has been
passed after obtaining approval from the
State Government, which otherwise has
jurisdiction in terms of Rules of 1994.
There is nothing in the rules, which may
prohibit a transfer of Urdu Translator-cumJunior Clerk to another post existing in the
cadre itself. The petitioner cannot insist that
he has to be posted in the same region
where he was initially appointed. Argument
advanced in that regard is not sustainable in
terms of the specific provisions of the rules
itself. It is otherwise settled that transfer is
an exigency of service, and unless it is
shown to be violative of any provisions of
the statutory rules or is otherwise found to
be mala fide, no interference with it is
called for. Challenge laid to the order of
transfer, therefore, fails."

The Rules applicable

18. It would be gainful to refer to
Rules governing the conditions of service
of the petitioner. The foremost to be noticed
are the Rules of 1994. The Rules aforesaid,
as already said, have been made by the
Governor in exercise of powers under the
proviso to Article 309 of the Constitution.
Clauses (a), (e) and (f) of Rule 5 of the
Rules of 1994 are relevant and quoted
below:

"5. In these rules, unless there is
anything repugnant in the subject or context-

(a) "appointing authority" means an
authority empowered to make appointment
to a post of Junior clerk in a Government
Department or office, under relevant
service rules or executive instructions, as
the case may be;

(b)-(d) x x x x

(e) "member of the service" means a
person substantively appointed under these
rules or the rules or orders in force prior to
the commencement of these rules to a post
in the cadre of the service;

(f) "service" means the service of
Urdu Translator-cum-Junior Clerk in a
Government
Department
or
office,
constituted under relevant service rules or
executive instructions, as the case may be;"

(emphasis by Court)

19. Again, under Part-II of the Rules
of 1994 vide Rule 6, the cadre of service or
the strength of service has been defined as
follows:

"6. The strength of the Service in each
Government Department or office shall be
such as may be determined by the
Government from time to time under the
relevant
service
rules
or
executive
instructions, as the case may be."

(emphasis by Court)

20. It is further relevant to refer Rules
16, 17(1) and 18 of the Rules of 1994,
which read as follows:

"16.