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V.S. Parameshwaran Sinkunny Nair and ors. Vs. the Chief Secretary to the Government of Mysore and anr. - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 4363 of 1968, 599 of 1969 and 3830 of 1970
Reported inAIR1971Kant263; AIR1971Mys263
ActsConstitution of India - Articles 226 and 309
AppellantV.S. Parameshwaran Sinkunny Nair and ors.
RespondentThe Chief Secretary to the Government of Mysore and anr.
Appellant AdvocateM. Rama Jois, Adv.
Respondent AdvocateK.S. Puttaswamy, High Court Govt. Pleader
DispositionWrit petition dismissed
.....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 agree 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 article 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.....

A. 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 of 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 intergrating 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 conditions 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, dated 23rd October, 1961, I, ..... working as Junior Assistant in ...... hereby agree 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 Article 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 Secretarial shall count from 7th October 1961. 4. In the case of one of the petitioners, viz., Parameswaran petitioner in W. P. 4363/68, an additional circumstance tobe 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. Rut the requestwas 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 on 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 Article 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 Article 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 madeby 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 apprising the petitioners and others of the Government's proposal and after receiving their written consent to be hound 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 find 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 or absorption.

11. It has however been argued that in an earlier decision of this Court in Writ Petn. No. 2115 of 1965, rendered on 31-3-1967 (Mys), 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 ofIndia, : (1968)ILLJ576SC to the effect that:

'It is true that the origin of Government service is contractual. There is anoffer and acceptance in every case. Butonce appointed to his post or office the Government servant acquires a status and hisrights and obligations are no longer determined by consent of both parties, but bystatute or statutory rules which may beframed and altered unilaterally by the Government.' The effect of this statement of the law, aswe understand, is that once a person takesup Government service he cannot deny, onthe basis of any term in the original contract of employment, to the Government theconstitutional and statutory right of settlingor altering his conditions of service. It doesnot mean that it is not open to the Government and one of its servants to enter intoa contract whereby either of them gives upa benefit. It is the normal position in Jaw,viz., that it is always open to any one togive up a benefit unless what appears to hea personal benefit is not indeed an excluexclusively personal benefit but the content ofpublic policy underlying a law or particu-larly a statute. So far as public servantsand conditions of their service are concerned, the only matter which is of public interest is that public offices should be held byhonest persons who are suitable to hold thesame; all other matters governing conditionsof service are matters of private interest tothe public servant and are not matters ofpublic interest or public policy. Salary, pensions, seniority, etc., are matters of benefitpersonal to the Government servant and itis 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 forsomething which, he considers, is to his advantage at the moment, it will be quite opposed to any principle of law or equity topermit 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 LJ 197, where it has been held that in spite of the fact that the petitioner had accepted to he governed by the Pension Rules which include Rule 285 this Court has held that such acceptance did not prevent him from questioning the unenforce ability 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 any body could have invested the rule with validity and en force ability. 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 Article 14 and Arti-cle 16 (1) of the Constitution cannot ba 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 representation 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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