V. N. Khare, J. - (1.) SOMETIMES orders for transfer are not cherished by the employees and bureaucrats, although] its importance for running an efficient and better Government is unquestioned. In the words of Justice Holmes, "The machinery of the Government would not work if it were not allowed a little play in its joint". (Bain Peanut Co. v. Pinson (1930) 75 Law Ed. 482) It appears that the petitioners are amongst such employees who on receipt of the order for transfer dated 17th June, 1993 passed by the State Government instead of joining the place of posting, preferred these petitions before this Court under Article 226 of the Constitution.
(2.) BEFORE we proceed to consider the validity of the order of transfer, we propose to notice certain facts and various legislative changes which 'have given rise to challenge of the order of transfer which is impugned in these petitions. Under Section 112-A of the U. P. Nagar Mahapalika Adhiniyam and under the provisions of the U. P. Municipalities Act, 1960 the State Government created Centralised Services, Known as U. P. Palika Centralised Services, This Centralised Service is governed by the Rules, known as the U. P. Palika Centralised Services Rules, 1966 and is applicable to all the Nagar Mahapalika and the Municipalities. The partitioner in writ petition no. 20221 of 1993, was appointed as Junior Engineer and was posted at Kanpur Nagar Mahapalika. Subsequently, on 28th June, 1987 the petitioner was temporarily promoted as Assistant Engineer in the U. P. Palika Centralised Service. The petitioner in writ petition No. 20225 of 1993, was appointed initially as Junior Engineer in the year 1970 and was posted in Nagar Mahapalika Allahabad. Subsequently, the petitioner was temporarily promoted to the post of Assistant Engineer in U. P. Palika Centralised Service. The U. P. Degislature passed an Act, known as U. P. Urban Planning and Development Act, 1973 (hereinafter referred to as the Act. In exercise of the powers under Section 4 of the Act, the State Government by notification constituted several Development Authorities known as Kanpur, Lucknow, Allahabad and others Development Authorities in the year 1974. Sub-section (4) of Section 59 at the Act provides as thus ; (4) "On and from the date of the Constitution of the Development Authority in relation to a development area which includes the whole of a city as defined in the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 all posts governed by the Centralized Services which were borne on the establishment of the Nagar Mahapalika of that city exclusively in connection with its said activities immediately before the date of constitution of the Development Authority shall, on and from such date, stand transferred to the Development Authority with such designations as the State Government may determine, but all such posts shall continue to be filled by members of the Centralised Services, as they would have been filled had they not been so transferred to the Authority, and the said Adhiniyam and the rules relating to the Centralised Services shall be amended accordingly." The petitioners while working in Nagar Mahapalika Allahabad were asked to discharge their duties in Allahabad Development Authority, Allahabad instead of Nagar Mahapalika Allahabad as Assistant Engineer. While the petitioners were working in Allahabad Development Authority the Governor of Uttar Pradesh in exercise of the powers conferred by clause (1) of Article 213 of the Constitution promulgated an Ordinance known as the Uttar Pradesh Urban Planning and Development (Amendment And Validation) Ordinance 1984, being U. P. Ordinance No. 19 of 1984 (hereinafter referred to as the Ordinance No. 19 of 1984). This Ordinance was published on October 19, 1984 and it came into force on 22nd October, 1984. By this Ordinance No. 19 of 1984 a new section 5-A was added in the principal Act. Sub-section (1) of new Section 5-A provided that the State Government by notification create one or more ''Development Authorities Centralised Services for such posts as the State Government may deem fit, common to all the Development Authorities. Sub-section (2) of new Section 3-A further provided that upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, shall, unless he opts otherwise, be absorbed in such service; (a) finally, if he was already confirmed in his post, and (b) provisionally, if he was holding temporary or officiating appointment. The State Government in exercise of the powers conferred by Sub-section (1) of Section 5-A on 22nd October, 1984 created Centralised Service known as Development Authorities Centralised Service. This Centralised Service included the posts of? Junior Engineer as well as the Assistant Engineer. On 27th April, 1985 the Governor of Uttar Pradesh promulgated another Ordinance known as U. P. Urban Planning And Development (Amendment And Validation) Ordinance, 1985 being U. P. Ordinance No. 10 of 1985 (hereinafter referred to as the Ordinance No. 10 of 1985). This Ordinance was subsequently replaced by an Act known as U. P. Urban Planning And Development (Amendment And Validation) Act, 1985 being U. P. Act No. 21 of 1985. Sub-section (2) of Section 1 of the U. P. Act No. 21 of 1985 provided that the Act shall be deemed to have come into force on October 22, 1984. By U. P. Act No. 21 of 1985 a new Section 5-A was introduced in the Act in place of original Section 5-A brought by U. P. Ordinance No. 19 of 1984. The new Section 5-A is in the same pattern as the old section 5-A with the exception that the posts mentioned in Subsection (4) of Section 59 of the Act on which the petitioners were working were excluded from the Development Authorities Centralised Service. Since the post on which petitioners were working was not included in the Development Authorities Centralised Service, the petitioners were not treated as members of the Development Authorities Centralised Service and the petitioners by the impugned order have been ordered to join the Interrogated Development Scheme which is under the UP. Palika Centralised Service and this has led the petitioners to file these petitions. The case of the petitioners is that they stood provisionally absorbed in the Development Authorities Centralised Service under the U. P. Ordinance No. 19 of 1984 and such they cannot be transferred to the U. P. Palika Centralised Service to which once they belonged. We shall now examine the case of the petitioners as to whether they stood absorbed in the Development Authorities Centralised Services or not and further if absorbed, whether such right has been taken away by the U. P. Ordinance No. 10, of 1985 which was replaced by the U. P. Act No. 21 of 1985.
(3.) LEARNED counsel for the petitioners on the strength of Section 6 of the U. P. General Clauses Act argued that the petitioners stood provisionaly absorbed in the Development Authorities Centralised Service under the U. P. Ordinance No. 19 of 1984 and the said, provisional absorption remained uneffceted by the repealing Ordinance No. 10 of 1985 which was subsequently replaced by the U. P. Act No. 21 of 1985. According to the learned counsel for the petitioners there is no manifest intention in the repaling Ordinance to destroy the rights, acquired by the petitioners under the provisions of the Ordinance No. 19 of 1984. The application of Section 6* of the General Clauses Act in the case of repeal and re-enactment was considered by the Supreme Court in State of Punjab v. Mohar Singh, AIR 1955 SC 84 which was strongly relied by the learned counsel for the petitioners in support of this argument. The Supreme Court in the said case held as thus : "Whenever there is a repeal of an anactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention, appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but, only for the purpose of determining whether they indicate a different intention. "The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out where there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incomplatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of till the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case." ;