Tulzapurkar, J. - (1.) By these two writ petitions filed under Articles 226 and 227 of the Constitution of India, the petitioners are challenging the validity and/or legality of the orders purporting to revert them to their original posts of clerks in the Posts and Telegraphs Department, and are seeking a mandamus directing respondents Nos. 1 and 2 in the first petition and respondents Nos. 1 to 4 in the other petition to continue them in their posts of Town Inspectors and Wireless Licence Inspectors which they are currently holding. Since common questions of fact and law arise in these Two petitions, they are being disposed of by a common judgment.
(2.) The five petitioners in Special Civil Application No. 1 of 1973 were initially appointed as clerks in the pay-scale of Rs. 110-4-150-5-175-EB-6-205-EB-7-240 in the Posts and Telegraphs Departments and except petitioner No. 5 the other petitioners were confirmed in these posts afters they had held the posts for quite some time. (Petitioner No. 1 was appointed to the post of clerk on 20th June, 1950 and was confirmed in that post on 16-2-1953; petitioner No. 2 was appointed on 16th May, 1953 and was today, under No.,. 3 was appointed on 20th January, 1951 and was confirmed on 1st March, 1959; petitioner No. 4 was appointed on 1st November, 1952 and was confirmed on 1st March, 1960; and petitioner No. 5 was straightway appointed permanently to that post on 21st September 1948). Rule 279/3 promulgated by the Director-General of Post Offices sometime in 1928, prescribes conditions of eligibility and provides for holding a test for selecting candidates from amongst the clerks for appointment to the posts of Town Inspectors. Since all the five petitioners satisfied the conditions of eligibility and passed the written test which was held on 4th January, 1970, they were on selection appointed to the posts of Town Inspectors under a Memorandum (Posting Order) dated 8th January, 1970. Both under the Rule 279/3 and in the Memorandum dated 8th January, 1970, it was made clear to the five petitioners that their posting as Town Inspector was for a period of three 2 years from the date of their joining and that during the period of their holding the post they will draw special pay of Rs. 30/-per month and other allowance in addition to their present pay. It further appears that under Rule 279/3 it has been provided that the official selected as a Town Inspector shall not ordinarily be allowed to hold such a post for more than three years continuously at one time and that such official who has worked for a period of three years should not ordinarily be appointed to hold such a post within the next three years and that the period of tenure shall not be extended in any case, except on very strong administrative grounds and with the approval of the Director General. The Rule also provides that officials shall be selected for the immediate vacancies and no waiting list shall be maintained. In view of this position fresh test for eligible candidates from amongst the clerks was held in December m 1972 and another batch of five clerks was A selected for appointment as Town Inspectors and by a Memorandum dated 19th December, 1972 issued by respondent No. 2, these five clerks, being respondents Nos. 3 to 7, were directed to take charge of the posts of Town Inspectors from the five petitioners, (Respondent No. 4 was directed to relieve petnr. No. 1, respdt. No. 2 was directed to relieve petitioner No. 2; respondent No. 5 was directed to relieve petitioner No. 3; respondent No. 1 was directed to relieve petitioner No. 4; and respondent No. 3 was I directed to relieve petitioner No. 5) I and the petitioners were repatriated to their parent posts. Thus the petitioners were purported to be reverted to their original posts of clerks and respondents Nos. 3 to 7 were appointed in their place as Town Inspectors. The petitioners have challenged this action on the part of respondents Nos. 1 and 2 (Union of India, represented by the Director General, Posts of Telegraphs, New Delhi and Senior Supreme Boat.... Offices, Division, Nagpur) on the ground that it amounts to reduction in rank and the same is being done without following the legal procedure of affording reasonable opportunity for showing cause and as such is violative of Article 311 (2) of the Constitution. The petitioners have also challenged this action on the ground that the same is violative of Articles 14 and 16 of the Constitution as also being contrary to Presidential decisions contained in the Notification dated 20th January 1965, whereby the posts of Town Inspectors, Wireless License Inspectors along with some others were taken out of the category of 'tenure posts' and were directed to be treated like other posts for which rotational transfers have been prescribed under Rule 60 of the Post and Telegraphs Manual, Vol. IV and as such the petitioners could not be reverted back to their original posts of clerks.
(3.) Special Civil Application No. 240 of 1970 has been preferred by Wireless License Inspectors seeking similar relief against their reversion to the posts of clerks. Petitioner No. 1 in this petition happens to be All India Wireless License Inspectors' Association, while petitioners Nos. 2 to 20 happen to be currently holding the posts of Wireless License Inspectors. These petitioners viz., Nos. 2 to 20 were also appointed initially as clerks in the Nagpur Division in the same time scales of pay that was applicable to the clerical cadre. Their appointments as Wireless License Inspectors were made under Rule 14 of the Licensing of Wireless Receiving Apparatus Rules, 1965 framed under the Indian Telegraph Act, 1885 and Rule 16 of the Indian Wireless Telegraphy (Possession) Rules, 1965 framed under the Indian Wireless Telegraphy Act, 1933. Rule 14 of the Licensing of Wireless Receiving Apparatus Rules, 1965, merely provides that a Licensing Authority may, by an order in writing, appoint Inspectors under these Rules. Similarly, Rule 16 of the Indian Wireless Telegraphy (Possession) Rules 1965 also provides that the Licensing Authority may, by an order, in writing, appoint Inspectors under these Rules. However, the Licensing Authority which is the 'Appointing Authority' has been defined under the definition clause to mean "the Telegraph Authority as defined in the Act, viz., The Director-General of Posts and Telegraphs." In other words, the Appointing Authority of these Wireless License Inspectors, who are appointed under Rules 14 and 16 mentioned above, is designated to be 'The Director-General of Posts and Telegraphs'. But we might mention that at all times material to the petitions on account of a change that had taken place in the administrative set up, the Appointing Authority for Wireless License Inspectors has been the senior Superintendent of Post Offices or the Superintendent of Post Offices, which has been the same for appointing Petitioners were initially appointed as clerks in the Postal Department, their selection and appointment to the posts of Wireless License Inspectors was governed by Rule 279/4 promulgated by the Director-General of Post Offices on 7th May, 1966, Rule 279/4 prescribed the conditions of eligibility and provides for a written test being held for selection of clerks to the posts of Wireless License Inspectors. The Rule also provides that an official appointed as Wireless License Inspector shall not ordinarily be allowed to hold such a post for more than three years continuously at one time and the official who has worked as a Wireless License Inspector for three years should not ordinarily be appointed to hold such a post within the next three years and that the period of tenure shall not be extended in any case except on very strong administrative grounds and with the prior approval of the Director-General. It also provides that the officials shall be selected for the immediate vacancies and no waiting list shall be maintained. The petitioners Nos. 2 to 20, as they satisfied the conditions of eligibility and also appeared for the written tests that were held and successfully passed the tests, were appointed to the posts of Wireless License Inspectors and as such Wireless License Inspectors became entitled to draw special pay of Rs. 30/- per month plus other allowances, in addition to their time-scale pay which they were drawing as clerks. The particulars regarding the dates of appointment as clerks, dates of confirmation as clerks and the dates of appointment as Wireless Licence Inspectors in respect of each of these petitioners have been given in Schedule 'A' annexed to the petition. In other words, on and from the respective dates on which they were appointed as Wireless Licence Inspectors, these petitioners have been working as such, obviously during the period of tenure of three years as mentioned in Rule 279/4 and these petitioners have averred that they are all under a threat of being reverted to their original posts of clerks after the expiry of the period of tenure of three years. The petitioners have referred to the instances of four Wireless Licence Inspectors viz., P.R. Ghatole, C.K.G. Mudaliar, D.B. Sawalkar and M.K. Alone, who have been reverted to the posts of clerks on the basis that they had completed their three years' tenure. These petitioners have, therefore, approached this Court in anticipation seeking to restrain the respondents Nos. 1 to 4 (Director of Postal Services, Maharashtra Circle, Bombay; Senior Superintendent of Post Offices, Nagpur Division, Nagpur; Union of India represented by the Director-General of Posts & Telegraphs, New Delhi; and Post Master General, Maharashtra Circle, Bombay respectively) from taking any action whereby they would be reverted to their original posts of clerks. A writ of prohibition is sought against the respondents on the grounds that such reversion would amount to reduction in (2) of the Constitution, that it would violate Articles 14 and 16 of the Constitution and that it would be contrary to the Presidential decision contained in the Notification dated 20th January, 1965. The petitioners have also sought a declaration that after the said Presidential decision, the posts of Wireless Licence Inspectors cannot be treated , as "tenure posts" but are governed by Rules of rotational transfers and as such the incumbents cannot be reverted to clerical posts and the petitioners must be continued in their present posts till they attain the age of superannuation.;