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G.B. Mudambadithaya and ors. Vs. the Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 1830, 1871, 1896, 1928, 1952, 1954, 1975, 1991, 1993 to 2000, 2003, 2004, 2005, 2007
Judge
Reported inAIR1969Kant362; AIR1969Mys362
ActsStates Reorganisation Act - Sections 115 and 115(5)
AppellantG.B. Mudambadithaya and ors.
RespondentThe Union of India and anr.
Excerpt:
service - seniority - section 115 of states reorganisation act - petition challenging final inter-state seniority lists made by central government under section 115 in respect of post of inspector and junior inspector of co-operative societies in new state of mysore - records revealed process by which determination of seniority and ranks were assigned was not made in accordance with law - criteria for finalizing list of seniority such as nature and duties of post, responsibilities and powers exercised by officers holding post not taken into consideration - exclusion of junior inspectors of state of madras and coorg from list of inspectors in new state of mysore not valid - held, final inter-state seniority list set aside - petition allowed. held see paras 27, 39, 40 and 41. - section.....somnath iyer, j.1. in these 40 writ petitions in which we heard arguments with respect to each of the writ petitions on the basis of its own facts and pleadings, we find it possible to pronounce a common order and we accordingly do so.2. these 40 writ petitions concern two final inter-state seniority lists made by the central government under the provisions of section 115 of the states reorganisation act in respect of the post of an inspector and a junior inspector of co-operative societies in the new state of mysore which came into being on november 1, 1956 the department of co-operation in which there was a concourse of civil services from five different areas of which the new state was composed. these lists rested principally upon equations made by the central government on the advice.....
Judgment:

Somnath Iyer, J.

1. In these 40 Writ Petitions in which we heard arguments with respect to each of the writ petitions on the basis of its own facts and pleadings, we find it possible to pronounce a common order and we accordingly do so.

2. These 40 writ petitions concern two final inter-State seniority lists made by the Central Government under the provisions of Section 115 of the States Reorganisation Act in respect of the post of an Inspector and a junior Inspector of Co-operative Societies in the new State of Mysore which came into being on November 1, 1956 the Department of Co-operation in which there was a concourse of civil services from five different areas of which the new State was composed. These lists rested principally upon equations made by the Central Government on the advice tendered by the Advisory Committee of which Section 115(5) of the States Reorganisation Act speaks.

3. The list pertaining to the post of an Inspector integrated twenty-one species of posts. Sixteen of them were of the then State of Bombay, the holders of which were allotted to the new State of Mysore one, of the then State of Hyderabad, two, of the State of Madras, one, of the State of Coorg and one more, of the former State of Mysore. These posts were considered to be equivalent posts.

4. The other final list as already stated appertained to the post of a junior inspector of Co-operative Societies in the new State of Mysore. This integration appertained to eight different kinds of posts which were held in five different areas which became part of the new State of Mysore to which we have referred. One of them was in the former State of Mysore, two were in the State of Bombay, three in the State of Hyderabad, one in the State of Coorg and one in the State of Madras. The Central Government thought that these posts were also equivalent posts and the equated post was that of a junior inspector.

5. We have before us in these Writ petitions more than one kind of challenge to the two final inter-State seniority lists prepared by the Central Government in that way.

6. But the main criticism made of these two lists is that they depended upon an equivalence of posts deduced without the application of the relevant criteria, and incidentally it is also contended that even the process by which there was a determination of seniority and the ranks to be assigned was not made in accordance with law.

7. It appears to us for reasons to be presently stated that the complaint with respect to the assignment of ranks based upon the determination of seniority is one which really concerns the complaint against equation, except in some cases in which the complaint that a proper rank has not been assigned has no association with the complaint against the equation.

8. We are therefore, asked in theses writ petitions to quash the two final inter-State seniority lists.

9. Those of the petitioners who challenge the list appertaining to the cadre of Inspectors fall into more than one category. Some of them contend that their posts should have been equated to a post higher than that of an Inspector in the new State of Mysore. The others impeach the inclusion of some of the posts in the different areas. Some of them make the impeachment that inferior posts have been equated to the post of an inspector in the new State.

10. Some of them, as for example in W. P. 1991 of 1966 and W. P. 2416 of 1966, make a complaint that in the determination of the length of continuous officiation in the equated post, some part of the service rendered by them in, what according to them was an equivalent post, has been illegitimately excluded from consideration, and that had there been no such exclusion they would have been entitled to the assignment of higher ranks.

11. With respect to the impugned list appertaining to the cadre of Junior Inspectors in the new State of Mysore, the most outstanding complaint is that they should have been included in the Inspectors' list and not in the Junior Inspectors' list, and that their exclusion from the Inspectors' list is attributable to an unsupportable equivalence of posts.

12. We shall first address ourselves to the criticism of the equations on which the impugned lists rest. But before we do so it should be observed that the challenge to the equation in the writ petitions before us does not extend to all the twenty-one posts to which the Inspector's list refers, not does it extend to all the eight posts to which the Junior Inspectors' list appertains. We have been taken through the pleadings in all the writ petitions before us, and it is undisputed that with respect to the post of a Senior Inspector in the erstwhile State of Hyderabad, the post of a Co-operative Sub-Registrar in the State of Madras and the post of Inspectors in the former State of Mysore, the equation made by the Central Government is not the subject matter of challenge.

13. We do not accede to Mr. Motiah's submission that there is any challenge in W. P. 2469 of 1966 in which the restricted claim made by the petitioner is that he should be made available the benefit of the service which he had rendered as Junior Inspector in the State of Coorg in the same way in which, according to him, the determination of the aggregate length of officiation was made in the case of the employees of the former State of Mysore.

14. Mr. Datar, on behalf of one of the petitioners, maintained that in some of the representations made to the Central Government under Section 115(5) of the States Reorganisation Act, there was a contention that the equation concerning the old Mysore Post made by the State Government on the basis of which they prepared the provisional inter-State seniority list was not correct, but that matter was not pursued after the Central Government prepared their final inter-State seniority list, and so, the position is that in the petitions before us today, the equation made by the Central Government with respect to the post of a Senior Inspector of a Co-operative Sub-Registrar of the State of Madras and the post of Inspectors of Co-operative Societies in the former State of Mysore, remains unchallenged.

15. So, what we should do in these writ petitions is to investigate into the criticism of the equation in so far as it relates to the remaining posts. Sixteen of them relating to the Inspectors' list, were in the State of Bombay, one is the post of a Senior Inspector of Co-operative Societies in the State of Madras and the remaining was the post of a Senior inspector in the State of Coorg.

16. Some of the petitioners who were the holders of those sixteen posts in the State of Bombay namely, the post of a District Co-operative Officer of grade I in the pay scale of Rs. 200-300 and the post of an Auditor, grade I in the pay scale of Rs. 200-300 made the claim that their posts were superior to the equated post of an Inspector in the new State of Mysore, and that the equivalence deduced between that post and the posts held by them was an unsupportable equivalence.

17. The petitioner in W. P. 8 of 1967 who was a Senior Inspector of the State of Hyderabad has put forward a grievance that the rank assigned to him was lower than the rank to which he was entitled, and that the assignment of the lower rank is attributable to the equation which was made by the Central Government between some of the inferior posts in the State of Bombay and the equated post. Similarly that is also the complaint made with respect to the equation of the Senior Inspector's post in the State of Madras and the Senior Inspector's post in the State of Coorg with the equated post. According to him those inferior posts in the State of Bombay and the two posts in Madras and Coorg were not equivalent to the equated post and should have been included in the Junior Inspector's list.

18. The petitioner in W. P. 2141 of 1966 also makes a similar complaint with respect to the equation concerning some of the posts in Bombay.

19. Now, the equivalence between the various posts should have rested have rested on four principles which were evolved during the conference of the Chief Secretaries of various States convened in the year 1956, and, with respect to that matter the Supreme Court said this in Union of India v. P. K. Roy, : (1970)ILLJ633SC :

'With regard to the principle for determining the equation of posts and relative seniority the following conclusions were reached at the conference of the Chief Secretaries:

It was agreed that in determining the equation of posts, the following factors should be borne in mind:--

(i) the nature and duties of a post;

(ii) the responsibilities and powers exercised by the officers holding a post; the extent of territorial or other charge held or responsibilities discharged;

(iii) the minimum qualifications, if any, prescribed for recruitment to the post;

(iv) the salary of the post.

It was agreed that in determining relative seniority as between two persons holding posts declared equivalent to each other, and drawn from different States, the following points should be taken into account:--

(i) length of continuous service, whether temporary or permanent, in a particular grade; this should exclude periods for which an appointment is held in a purely stop-gap or fortuitous arrangement;

(ii) age of the person; other factors being equal, for instance, seniority may be determined on the basis of age. * * * * * *.'

20. It was said on behalf of the petitioners that the impugned equations did not rest upon the four criteria evolved during the Chief Secretaries' Conference, and that therefore, there should now be a fresh determination of the equation and the determination of seniority which would ordinarily be a corollary of the former.

21. But Mr. Rama Jois appearing on behalf of the allottees from the former State of Mysore advanced the contention that this court has no power to investigate the question whether the equation has been made by the application of the relevant criteria or no, and that even if it transpires that the equation does not rest upon a proper application for the four principles on which that equation should have rested, we could not disturb the equation on which the impugned seniority lists depended.

22. We are of opinion that Mr. Central Government Pleader is right in not subscribing to the postulate so placed before us by Mr. Rama Jois. This court has expressed the view more than once and in more than one case that an equation which it made except on a proper application of those four principles, cannot be maintained.

23. It should be observed that Section 115(5) of the States Reorganisation Act directs an integration which ensures fair and equitable treatment to all persons affected by the provisions of that section and in its to afford such fair and equitable treatment that the conference of the Chief Secretaries deduced the four principles by the application of which alone the equation had to be made. So it is far to unreasonable for Mr. Rama Jois to contend, as he did contend, that those four principles which, according to him, were formulated solely and exclusively for the guidance of the Central Government, could have no relevance when the equation is assailed on the ground that it does not rest upon the principles so formulated.

24. In Venkatachalachar v. Union of India, (1969) 17 Law Rep 591 (Mys) this court set aside the equation on the ground that it was not preceded by a proper application or consideration of those four principles, and, we see no reason to take a different view in the cases before us.

25. But Mr. Rama Jois asked us to say that the decision of the Punjab High Court in K. C. Gupta v. Union of India, which takes a contrary view should commend itself to us. But it is not however possible for him to ask us to do so since the view expressed by the Punjab High Court on which Mr. Rama Jois depends can no longer he sustained after the clear enunciation made by the Supreme Court in : (1970)ILLJ633SC which emphasises the importance of the four principles evolved during the Chief Secretaries' Conference and their application in obedience to the rules of natural justice.

26. We therefore now proceed to consider the ratiocination on which the impugned equation rests. From the proceedings of the Advisory Committee made available to us by Mr. Central Government Pleader, it becomes clear that in the context of the discussion appertaining to the impugned equations, the Advisory Committee proceeded to discuss the question whether a dichotomy with respect to the post of an Inspector in the form of two lists, one relating to the cadre of Inspectors and the other relating to the cadre of Junior Inspectors was appropriate and reached the conclusion that it was. Then the discussion related to sixteen different posts of Bombay and the two posts of Madras. The Advisory Committee thought that it was not clear 'whether the duties of each of the posts from Bombay differed materially and substantially from those of the other and if so, to what extent.' So they proceeded to discuss the process of recruitment to those posts and the prescribed qualifications. This discussion was in the main restricted to the question whether the post of an Assistant District Co-operative Officer which is the 9th post in annexure 11 to the provisional inter-State seniority list which was prepared on April 8, 1965, of the State of Bombay, was inferior to the post of an Inspector in the new State of Mysore, and the conclusion reached was that it was not.

There was next the discussion of the post of an Assistant District Co-operative Officer of Bombay and whether that post was equivalent to the post of a senior Inspector of Co-operative Societies of Mysore and other integrated areas, and the view expressed by the Advisory Committee with respect to that matter is of some importance, supporting as it does the complaint made by the petitioners before us with respect to the equation. This is what the Advisory Committee said:

'Having regard to the nature of duties performed by the incumbents of the post of District Co-operative Officer and the Assistant District Co-operative Officer and their jurisdiction, it was felt that it would be reasonable to equate the post of Assistant District Co-operative Officer from Bombay with the Senior Inspector of Co-operative Societies from Mysore and other integrating areas. The post of District Co-operative Officer from Bombay might have involved the assumption of somewhat higher duties and responsibilities, but the position of the incumbents of those posts would be safeguarded by the principle of maintaining inter se seniority and by the fact that those of them who had been promoted to that post would be allowed to count all the service rendered by them as Assistant District Co-operative Officer towards seniority in the integrated list.'

27. It will be remembered that two of the four criteria by the application of which an equation has to be made are : (1) the nature and duties of post and (2) the responsibilities and powers exercised by the officers holding a post. The investigation which was made by the Advisory Committee with respect to the matter to which we have referred was whether the post of an Assistant District Co-operative Officer of Bombay was equivalent to the post of a senior Inspector in the other integrated areas or the equated post of an Inspector in the new State of Mysore. The question did present some importance by reason of the fact that the post of a District Co-operative Officer of grade I and the post of a District Co-operative Officer of grade II in the State of Bombay were both, according to the Advisory Committee equivalent to the post of an Inspector in the new State of Mysore. The pay scale of the former post was Rs. 200-300 and that of the latter Rs. 150-2100. The representation made to the Advisory Committee was that an Assistant District Co-operative Officer of Bombay whose pay scale was Rs. 100-150 could not be equated with the Inspector of the new State of Mysore since that post was inferior to the post of a District Co-operative Officer, grade I and grade II.

28. In the context of that representation it was the duty of the Advisory Committee to examine the nature and duties of the three posts and the responsibilities and powers exercised by the officers holding them. And, when they made their investigation they had no doubt in their minds that the post of a District Co-operative Officer involved the assumption of somewhat higher duties and responsibilities than those of the post of an Assistant Dist, Co-operative Officer, and, unless they found it possible to say that the other criteria, when applied, would yield a different conclusion, they could not have deduced any equivalence between the two posts on the one hand and the third on the other.

29. That, is, prima facie the position, and the disparity between the duties and responsibilities of the two posts on the one hand and those of the other, would not get obliterated by mere maintenance of the inter se seniority of the persons holding those posts, which has no relevance whatsoever in the determination of the equation which has to be made in accordance with the prescribed four criteria, and, that is not one of them. It is difficult to understand how the maintenance of inter se seniority between the holders of two unequal posts, if they are unequal--and on that question it is not for us to express any final opinion in these cases--can make them equal. So, the equation so deduced invites the criticism that it was made by the application of the relevant criteria, since there is no other discussion on that question, save what we have said about it.

30. What we have said so far is the discussion of the Advisory Committee with respect to the equivalence between the post of an Assistant District Co-operative Officer of Bombay which is the 9th post in the second annexure to the provisional seniority list, and the equated post of an Inspector in the new State of Mysore. And it is plain that the equation made on the basis of that discussion cannot be sustained.

31. With respect to the remaining thirteen posts among the sixteen posts of Bombay, the Advisory Committee did not embark upon any adequate discussion. In that context the committee said this:--

'There are some other posts from Bombay which carried the scale of Rs. 100-140 and Rs. 150-200. These were only an intermediate category of posts to which officers were promoted before they came to hold the post of District Co-operative Officers. The incumbents of those posts also should be included in the seniority list of the equated cadre and should count towards seniority all the service rendered by them in posts on Rs. 100-140 and above.'

32. The statement so made by the Advisory Committee suggests that the post of a District Co-operative officer was a promotional post while the other posts were posts relating to the initial recruitment cadre. But the post of a District Co-operative Officer of Bombay was equated to the post of an Inspector of the new State of Mysore, and the equation of the initial cadre posts with the promotional posts of Bombay appears to introduce an element of incongruity. Moreover the equation so made did not rest upon the application of any of the four principles by which it stood regulated.

33. The concluding part of the discussion of the Advisory Committee related to the post of a Co-operative Sub-Registrar of Madras. But, as we have already observed, there is no challenge to the equation made with respect to that post, and so, it becomes unnecessary for us to investigate its correctness.

34. After the discussion concluded in that way the Committee proceeded to made its comments on individual representations. But before doing so, there was no discussion of the attributes of the post of a Senior Inspector of Madras or of a Senior Inspector of Coorg.

35. It is thus clear that with respect to the Bombay posts, the post of a Senior Inspector of Madras and the post of a Senior Inspector or Coorg, the equation was not made by the application of the relevant criteria, and so, cannot be sustained.

36. It would be recalled that the equation made with respect to the post or a Senior Inspector of Hyderabad, the post of a Co-operative Sub-Registrar of Madras and the post of an Inspector of the former State of Mysore is not the subject matters of any challenge in these writ petitions, and since according to Mr. Central Government Pleader not even a representation with respect to those matters was made to the Central Government under Section 115(5) of the States Reorganisation Act, it becomes unnecessary for us to embark upon a discussion of its validity.

37. If the equation with respect to the other posts cannot be defended, and so must be set aside, except in the cases in which the complaint with respect to the determination of seniority rests upon some other ground, the assignment of ranks on the basis of the equation which now falls to the ground must also stand set aside. That determination has to be made in manner prescribed by the conference of the Chief Secretaries, and so, we set aside the final inter-State seniority list relating to the post of an Inspector, in so far as it relates to the sixteen posts of Bombay, the post of a Senior Inspector of Madras and the post of a Senior Inspector of Coorg. We make a direction that the equation with respect to those posts should now be made afresh and in accordance with law. But we, however, make it clear that the determination of seniority with respect to everyone of the persons included in the final inter-State seniority list relating to the cadre of Inspectors, including those who were allottees from the former State of Mysore and the State of Hyderabad and those from Madras who held the post of a Co-operative sub-registrar in the State of Madras should be made afresh and on the basis of the new equation to be evolved in accordance with the direction made by us.

38. With respect to the equation evolved for the preparation of the inter-State seniority list in respect of the cadre of Junior Inspector of Co-operative Societies in the new State of Mysore, it appears from the proceedings of the Advisory Committee made available to us by Mr. Central Government Pleader that there was again in this context no application of the four criteria by the application of which alone that equation should be made. All that the Advisory Committee stated with respect to that matter was to allude to the argument advanced on behalf of the representationists that the duties and responsibilities of the Senior Inspectors of the State of Coorg and the Junior Inspectors of that State were identical and that they should not be put into two different classifications. The Advisory Committee did not say that duties and responsibilities and the jurisdictions appertaining to the one post were not identical with those of the other, but proceeded to observe that since the erstwhile State of Coorg had maintained two different classes of posts on two different scales of pay and recruitments to those posts were made by two different methods, the two distinct classifications must remain.

39. It is obvious that the perpetuation of those two distinct classifications could not be made to rest on any such ground. So, the complaint made by the petitioners in W. P. 2469 of 1966 and W. P. 1991 of 1966 against the exclusion of the service rendered by them in the cadre of Junior Inspectors of the State of Coorg has to be sustained on the ground that, into the validity of such exclusion, there has been no proper investigation.

40. With respect to the exclusion of the Junior Inspectors of the State of Madras from the list of Inspectors it appears from the Advisory Committee's proceedings that there is little or no discussion supporting the equation. It appears from those proceedings that here again there was no application of the relevant principles formulated in that regard.

41. So we set aside the final inter-State seniority list concerning the cadre of the Junior Inspectors in so far as it relates to the posts of Junior Inspectors of the then State of Coorg and the posts of Junior Inspectors of the Sate of Madras. As to equation made with respect to the post of a Junior Inspector of the former State of Mysore which existed only in the area of the Bellary District which became part of the former State of Mysore in the year 1953 but was in the State of Madras until then, and with respect to the other posts of the Hyderabad and Bombay areas which were equated with the post of a Junior Inspector of the new State of Mysore, the final inter-State seniority list will remain undisturbed, but subject to the reassignment of ranks on a proper determination of seniority on the basis of the equation which may now be evolved or deduced by the Central Government as directed by this order.

42. In W. P. 1952 and W. P. 2008 of 1966, the controversy surrounds the question whether the petitioners are entitled to higher ranks than those assigned to them in the impugned final inter-State seniority list relating to Inspectors, and that claim to no extent rests upon any complaint about equation. Their contention is that even on the basis of the equation deduced by the Central Government the ranks which should properly be assigned to them are higher than those which they have now secured. With respect to that matter it is admitted that they have made representations to the Central Government, and, now that the entire equation with respect to the post concerning those two petitioners has to be made afresh in accordance with the directions issued in this order, even the determination of the seniority of these two petitioners and of the ranks to be assigned to them has to be made once again in accordance with law.

43. Mr. Central Government Pleader raised a contention that the Central Government is normally not the repository of the power to decide controversies concerning inter se seniority. On that question we do not express any opinion in these writ petitions. It will be open to the petitioners to contend before the Central Government that that power resides in the Central Government and the Central Government, when it determines seniority, will do so in accordance with law by the exercise of all the powers which reside in them. If these two petitioners are aggrieved by any adverse decision either with respect to competence or in respect of the determination of seniority to be so made by the Central Government, they would of course be at liberty to seek appropriate redress at the appropriate stage.

44. Now, the other incidental directions that we issue are these: The Central Government will not call for representation with respect to the matters to be decided by them. The petitioners in all these writ petitions and others who wish to do so shall make their representations to the Central Government with respect to the matters to be decided now by the Central Government in accordance with this order within six weeks from this date. Those representations which have to be transmitted to the Central Government will be forwarded by the State Government to the Central Government within two months thereafter. The Central Government will proceed to prepare the final inter-State seniority list within four months next following.

45. The petitioners before us and the others who can make representations in manner directed, can raise in those representations every contention available to them.

46. Mr. Central Government Pleader says that in the context of an undertaking given by the Central Government to the Supreme Court when a writ petition presented by persons who held the posts of District Co-operative Officers. Grade I, of the Bombay State was disposed of, the Central Government is now making an equation with respect to those posts, and that the Central Government should therefore be at liberty to make a consolidated equation of all the posts in respect of which such equation has now to be made. We grant them liberty to do so.

47. Let the usual copies of this order be supplied to Mr. Government Advocate and Mr. Central Government Pleader, and to such others who make applications within a week from this date.

48. No costs.

49. Order accordingly.


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