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V.S. Parameshwaran and ors. Vs. Chief Secretary, Government of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 4363 of 1968
Judge
Reported in(1971)ILLJ649Kant
ActsConstitution of India - Articles 14, 16(1), 226 and 309
AppellantV.S. Parameshwaran and ors.
RespondentChief Secretary, Government of Mysore and ors.
Excerpt:
.....merits, it appears to us that the petitioners have no good ground to go back upon the undertaking given in their declarations before they were absorbed into secretariat service......1961, i, ......... working as junior assistant in .......... hereby to my absorption in the mysore government secretariat on the conditions stated in the said circular which i hereby voluntarily accept.' thereafter, the absorption of all persons who had given such a declaration in secretariat service was notified by the government in the notification of 9th march, 1962, and simultaneously there were issued rules made in the exercise of the powers conferred by the proviso to art. 309 of the constitution. the names of the persons absorbed which include those of the petitioners before us were set out in an annexure to the rules. referring to the schedule, rule 3 says that the persons mentioned therein shall be deemed to have been appointed to the several posts held by them in the.....
Judgment:
ORDER

Narayana Pai, C.J.

1. The common question that arises in these writ petitions is the sustainability of the claim by these petitioners that their seniority as Junior Assistants in the Secretariat of the State Government should be determined by taking into account their service either at the Secretariat or in other departments of the Government prior to the 7th October, 1961. The question arises in the following way :

2. Of the petitioners, one was an allottee from the State of Bombay and the other two were serving the Government of the erstwhile State of Mysore in different departments. They were later transferred to serve as First Division Clerks in the Secretariat. After the reorganisation of States, allottees from different integrating areas came to the Secretariat. In view of the conflicting interests of persons coming from various integrating areas and also those who were directly recruited to serve in the Secretariat and those who came by transfer from other departments of the Government, and after considering various representations including those made by the petitioners or others in their position, the State Government issued a circular in which it was stated that the Government have decided that the cases of such of the officials as are willing to be absorbed in the Secretariat on the conditions set out therein may be considered for absorption in the secretariat service. Among the various condition set out therein, one was that the service in the parent department and service in the Secretariat prior to 7-10-1961 will not count for seniority in the Secretariat. The circular concluded by stating that such of the officials as were eligible for absorption and who were willing to be absorbed on the conditions mentioned therein should send a declaration in a form annexed and that the officials who did not agree to such absorption would be repatriated to their parent department.

3. All the petitioners gave such a declaration, the common text whereof was :

'In pursuance of the Circular No. GAD 268 ASP 61, dt. 23rd October, 1961, I, ......... working as Junior Assistant in .......... hereby to my absorption in the Mysore Government Secretariat on the conditions stated in the said circular which I hereby voluntarily accept.'

Thereafter, the absorption of all persons who had given such a declaration in Secretariat service was notified by the Government in the Notification of 9th March, 1962, and simultaneously there were issued rules made in the exercise of the powers conferred by the proviso to Art. 309 of the Constitution. The names of the persons absorbed which include those of the petitioners before us were set out in an annexure to the rules. Referring to the Schedule, Rule 3 says that the persons mentioned therein shall be deemed to have been appointed to the several posts held by them in the Secretariat with effect from 7th October, 1961. In sub-rule (1) of Rule 4 it is stated that in the case of persons who are deemed to have been appointed under Rule 3, service for seniority in the Mysore Government Secretariat shall count from 7th October, 1961.

4. In the case of one of the petitioners, viz., Parameshwaran, petitioner in W.P. 4363/68, an additional circumstance to be noted is that after giving the declaration he made a representation to the Government that his seniority may be fixed from a date anterior to 7-10-61. But the request was rejected more than once and thereafter a separate order absorbing him was made on the 15th of June, 1963.

5. On behalf of the State Government, apart from the argument merits that the declaration is binding on the petitioners as one of the essential terms of their absorption in the Secretariat service, it is also urged that there has been inordinate delay on the part of the petitioners in approaching this Court. It will be remembered that the order of absorption was made in March, 1962 and these writ petitions were filed in 1968 and 1969.

6. Mr. Rama Jois, learned Counsel for the petitioner, states that if serious notice is taken of the delay it might perhaps furnish sufficient ground for this Court to decline to interfere in favour of the petitioners under Art. 226, but urges that we should not take any such serious notice because the inter-se seniority list of Secretariat personnel after the reorganisation of States has not yet been prepared by the State Government either provisionally or finally. We do not think that one delay justifies another delay. The question really is whether the question of seniority settled some years ago could be permitted to be reopened after so long a delay as has occurred in these cases, because to do so would inevitably result in disturbing the relative position of various persons who might have been promoted to different higher cadres or have earned other benefits attached to seniority. One of the grounds on which Courts decline to exercise their power under Art. 226 is that the petitioner has delayed in approaching the Court to such an extent as to make any interference likely to cause prejudice to several other persons who had acquired rights on the basis of the situation left unchallenged or unquestioned by the petitioner for a long period of time.

7. Even upon merits, it appears to us that the petitioners have no good ground to go back upon the undertaking given in their declarations before they were absorbed into Secretariat service.

8. The argument strongly pressed on their behalf by Mr. Rama Jois is that under the normal provisions of the Seniority Rules, particularly Rule 6, when a Government servant is transferred not on his consent but in public interest from one department to another, he does not lose the benefit of his earlier service for purposes of his seniority and that these petitioners having been so transferred to the Secretariat could not rightly be deprived of the benefit of the said rule by the imposition of a condition at a subsequent point of time. If the matter rested merely on an assessment of the question whether the transfer was upon consent or at request by the petitioners or made by the Government themselves in public interest, it would have been possible to accept or act upon the argument urged by Mr. Rama Jois.

9. But matters have proceeded much farther than that. As already stated, the absorption or the ultimate decision as to the terms on which such absorption could be given effect to was taken after fully appraising the petitioners and others of the Government's proposal and after receiving their written consent to be bound by the conditions set out in the first circular. It should be remembered that although the Government had the power to transfer petitioners from one department to another Department, the petitioners did not have the right to insist that they shall be placed or continued in any particular department of their choice. Absorption in Secretariat service meant that the petitioners would thereafter be serving only in the Secretariat and will not be liable for transfer to other departments. Hence, to the extent the Government offered to absorb the petitioners in Secretariat service, the Government were giving up the right to exercise an undoubted power vested in them. To be relieved of the necessity of submitting oneself to the power of transfer is indeed a benefit which the petitioners derived. As against that, the Government had asked for and the petitioners did give up the benefit of their previous service for counting seniority.

10. No question therefore arises of the petitioners now asking for the striking down of their undertaking while retaining the benefit acquired by them in the order of absorption.

11. It has however been argued that in an earlier decision of this Court in Writ Petition 2115 of 1965 rendered on 31-3-1967, the imposition of a similar condition by the Government was struck down as invalid. But upon facts it appears in that case that the successful petitioners therein had refused to give an undertaking or declaration of the type given by the petitioners in these cases, that the absorption was carried out by the Government and that the condition of giving up prior service was imposed unilaterally by the Government. It is in those circumstances that this Court held that the petitioners therein could not be deprived of the benefit of Rule 6 of the Seniority Rules.

12. The further argument that the principle of that case has been extended to other persons is also of no avail because it is not clear from the order of the Government extending the benefit of the principle to others that the persons who took the benefit of it had given voluntary declarations of the type given by the petitioners in these cases.

13. Reliance has been placed on the observations, of the Supreme Court in the case of Roshanlal Tandon v. Union of India, : (1968)ILLJ576SC , to the effect that :

'It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.'

The effect of this statement of the law, as we understand, is that once a person takes up Government service he cannot deny, on the basis of any term in the original contract of employment, to the Government the constitutional and statutory right of settling or altering his conditions of service. It does not mean that it is not open to the Government and one of its servants to enter into a contract whereby either of them gives up a benefit. It is the normal position in law, viz., that it is always open to any one to give up a benefit unless what appears to be a personal benefit is not indeed an exclusively personal benefit but the content of public policy underlying a law or particularly a statute. So far a public servant and conditions of their service are concerned, the only matter which is of public interest is that public offices should be held by honest persons who are suitable to hold the same; all other matters governing conditions of service are matters of private interest to the public servant and are not matters of public interest or public policy. Salary, pensions, seniority, etc., are matter of benefit personal to the Government servant and it is always open to him to give up that benefit. When the giving up is not a mere matter of charity but is a matter of bargain for something which he considers, is to his advantage at the moment, it will be quite opposed to any principle of law or equity to permit him to go back on his undertaking.

14. Another argument is based on the decision of this Court in S. K. Shetty v. State of Mysore, (1970) 2 Mys. L.J. 197, where it has been held that in spite of the fact that the petitioner had accepted to be governed by the Pension Rules which include Rule 265, this Court has held that such acceptance did not prevent him from questioning the unenforceability of the first note thereto on the ground that the same had not received the previous approval of the Central Government. The principle there stated however is quite different. The validity of the rule itself depended upon the previous approval of the Central Government and no amount of consent by anybody could have invested the rule with validity and enforceability. Here in these cases the entire matter rests upon voluntary contract between the petitioners and the State Government.

15. The argument that there has been infringement of Art. 14 and Art. 16(1) of the Constitution cannot be substantiated because there is no proof or material to hold that persons similarly situated as the petitioners have been dealt with differently. The only basis for the argument is that the Government asked for an undertaking in these cases but did not ask for a similar undertaking from others who were brought to the Secretariat. The previous history of representations and attempt to reconcile various interests itself, in our opinion, furnish sufficient ground for classifying these persons for being governed by a particular condition.

16. The writ petitions are, therefore, dismissed.


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