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E.V. Seshadri Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos 1455 and 1456 of 1963
Judge
Reported inAIR1966Kant31; AIR1966Mys31; (1967)ILLJ42Kant
ActsStates Reorganisation Act - Sections 115; Constitution of India - Articles 14 and 226
AppellantE.V. Seshadri
RespondentState of Mysore and anr.
Excerpt:
.....challenging competence of first respondent to prepare and publish second provisional inter-state seniority list of assistant engineers at instance of and for sole purpose of giving higher rank to second respondent - records revealed no comprehensive revision of first inter-state seniority list of assistant engineers on basis of representations received by officer in response to notification issued in 1957 - first respondent had yet to get clarifications as to whether second respondent was regular government servant of state or whether his services were on contract basis - further fixation of seniority on consideration other than mentioned in circular instructions issued by central government to states not permissible - as such second seniority list issued by first respondent was..........state fixing the seniority of the second respondent above them in the revised second provisional inter-state seniority list and have sought for the issue of a writ of certiorari or any other appropriate writ, direction or order quashing the government order dated 20th july 1963 bearing no. gad 20 igs. 62 placing the second respondent above sri c.l. subba rao, serial no. 1 in the provisional inter-state seniority list of assistant engineers by which it is done.(2) in order to appreciate the arguments addressed before us, it is necessary to set out, a few facts which are almost undisputed. e.v. seshadri, petitioner in writ petition no. 1455 of 1963 was appointed as a surveyor in the public works department of the erstwhile state of mysore in 1941. he was selected as a probationary.....
Judgment:
ORDER

(1) In these two petitions filed under Article 226 of the Constitution of India, the two petitioners have challenged the legality of the order passed by the State fixing the seniority of the second respondent above them in the revised second provisional Inter-state Seniority list and have sought for the issue of a Writ of certiorari or any other appropriate writ, direction or order quashing the Government Order dated 20th July 1963 bearing No. GAD 20 IGS. 62 placing the second respondent above Sri C.L. Subba Rao, serial No. 1 in the Provisional Inter-State Seniority list of Assistant Engineers by which it is done.

(2) In order to appreciate the arguments addressed before us, it is necessary to set out, a few facts which are almost undisputed. E.V. Seshadri, Petitioner in Writ Petition No. 1455 of 1963 was appointed as a Surveyor in the Public Works Department of the erstwhile State of Mysore in 1941. He was selected as a Probationary Assistant Engineer in 1945 and was appointed as an Assistant Engineer on 4th of May 1946. S.K. Hanumatha Reddy, petitioner in Writ Petition No.1456 of 1963 joined service of the erstwhile State of Mysore as a Surveyor on 19-5-1942. He was also selected as a Probationary Assistant Engineer in 1945 and was appointed as an Assistant Engineer in 1946.The second respondent S. Neelakantappa was appointed by the Coorg Government as an Assistant Engineer on 2-4-1953. He was promoted as an Executive Engineer on 10-8-1955 and continued to hold the post till the reorganisation of the States.

Consequent upon the formation of the new State of Mysore all these officers were allotted to the new State of Mysore on 1-11-1956. After the reorganisation of the States, the question of integration of services was taken by the new State of Mysore (the first respondent) and for the purposes of such integration the State had to determine the equation of the posts and fix up the seniority of the several officers in the respective cadres. According to the Circular Instructions issued by the Central Government the equation of posts had to be determined having regard to (1) the nature and duties of post; (2) the responsibilities and powers exercised by the officer holding the post; the extent of territorial or other charge held or responsibilities discharged; (3)the minimum qualification, if any, prescribed for recruitment to the post and (4) the salary of the post.

After equating the posts the next stage was to determine the relative seniority as between the two persons holding posts declared equivalent to each other and drawn from different States. The criterion for fixing the relative seniority was the length of continuous service whether permanent or temporary in the equated cadre. The first respondent prepared what is called the 'Provisional Inter-State Seniority list' of the several officers of the Public Works Department allotted to the new State of Mysore by a Notification dated 22nd March 1957. The post held by the second respondent as an Executive Engineer in the erstwhile State of Coorg was equated to that of an Assistant Engineer of the other areas and his rank in the said list was fixed on the basis of the length of his service in the equivalent cadre. In the said list the name of the petitioners in Writ Petition No. 1455 of 1963 appeared at Serial No. 5; that of the petitioner in Writ Petition No. 1456 of 1963 at Serial Number 10 while that of the second respondent called for objections from any Government servant dissatisfied with the above said list within 15 days from the date of its Notification in the Gazette.

The several officers including the second respondent, who were dissatisfied by the equation of the posts and fixation of their seniority filed their objections within the time prescribed. The Central Government being prescribed as the exclusive authority for integration of services under Section 115 of the States Reorganisation Act the provisional Inter-State Seniority list prepared by the first respondent along with the several objections filed by the Government servants who were dissatisfied with it had to be forwarded to the Government of India for preparation and publication of the Final Inter-State Seniority list. The first respondent without adopting such a course prepared and published what was styled as the 'Final Inter-State Seniority list' by a Notification dated 13th August 1960. The name of the second respondent was omitted in the said list but a note had been annexed to the effect that separate orders will issue regarding his position.

In M.A. Jaleel v. State of Mysore, 39 Mys L.J. 425: (AIR 1961 Mys 210) this Court held that the authority conferred by S. 115(5) on the Central Government is the original authority and that the State Government had no competence to finally determine the integration of services and to prepare and publish a 'Final Inter State Seniority List' and quashed the Final Inter State Seniority list prepared and published in respect of the Officers of the Commercial Tax Department. After the decision in Jaleel's case, the so-called 'Final Inter State Seniority List' of the public works Department prepared and published by the State Government became a nullity.

(3) On 20th December 1962 the first respondent published a Notification indicating its intention to correct the Provisional Inter-State Seniority lit of Assistant Engineers (Class I) published as part III in the Notification No. SRD 1-13 DIF 57 dated 22nd of March 1957 by deleting the name of Sri. S. Neelakantappa at Serial No. 210 and inserting it at the top of the said list i.e., above C.L. Subba Rao (Serial No. 1). It was stated in the said Notification that the reasons for giving the second respondent a special position at the top of the list of Assistant Engineers as on 1-11-1956 are that his responsibilities, duties and powers as on 1-11-1956 were immediate between those of the Assistant Engineers and the Executive Engineers of the regular Public Works Department. The first respondent called for objections of Government Servants dissatisfied by the proposed change and directed them to submit such objections by means of a Written representation addressed to the Chief Secretary to Government, General Administration Department (Integration) within 15 days from the date of publication of the Notification in the Gazette for consideration by the State Government. Several Assistant Engineers whose seniority in the Inter-State Seniority list published on 22nd March 1957 was likely to be disturbed by the proposed change of the rank of the second respondent filed their objections opposing the same. The first respondent overruled them and issued a corrigendum dated 20th of July 1963 which reads thus:

'Corrigendum dated 20th July 1963(Ashadha 29, Saka Era 1885) No. G.A.D. 20 No. GAD 20 IGS 62 dated 20th July 1963 the name of Shri. S. Neelakantappa is deleted at Sl. No. 210 in the provisional Inter-State Seniority list of Assistant Engineers (Class I) published at Part III in Notification No. SRD I, 13 DIF 57 dated 22nd March 1957 and inserted at the top of the said list i.e., above Sri C.L. Subba Rao 'Sri C.L. Subba Rao (Sl. No.1).

Any officer aggrieved by the above correction may submit his objections by means of a Written representation (in five sets addressed to the Secretary to Government of India, Ministry of Home Affairs, New Delhi-11) through the Chief Secretary to Government of Mysore, General Administration Department (Int.) within three weeks from the date of publication of this Corrigendum in the Gazette for consideration by the Government of India.

B.R. Deen Dayal

Deputy Secretary to Govt.

G. A. D. (Int.)'

(4) Being aggrieved by the above Notification the petitioners have filed these two petitions challenging the competence of the first respondent to prepare and publish the Second Provisional Inter-State Seniority List of Assistant Engineers at the instance of and for the sole purpose of giving a higher rank to the second respondent.

(5) It is necessary to state that on the basis of the rank assigned to that second respondent in the second Provisional Inter-State Seniority list he has been promoted as a Superintending Engineer after these petitions were filed. The two petitioners have also since been promoted in their turns as Superintending Engineers.

(6) It is urged by Mr. V.L. Narasimha Murthy, learned counsel for the petitioners, that once the first respondent determined the equation of the posts and fixed the seniority of the officers in the equated cadre according to the Circular Instructions issued in that behalf by the Central Government and issued a Notification on 22nd March 1957, it had no authority to prepare and issue a second or a revised Provisional Inter-State Seniority list of Assistant Engineers. He strenuously urged that the second list prepared and issued by the first respondent is beyond its competency and is liable to be struck down. He further urged that the perusal of the Notification dated 22nd March 1957 clearly indicated that the first respondent had taken into consideration the several relevant factors while it equated the post of the Executive Engineer of Coorg to that of an Assistant Engineer of the other areas and that the question whether the said equation is correct or not had to be finally determined by the Government of India under section 115 of the States Reorganization Act and that the first respondent had no authority to revise the list.

On the other hand it is urged by Mr. Malimath, learned counsel for the second respondent that the State Government was entirely wrong in equating the post of the Executive Engineer in Coorg which was held by the second respondent on 31-10-1956, to that of an Assistant Engineer of other areas and that the first respondent was perfectly justified in revising it taking into consideration the several factors mentioned in the representations submitted by the second respondent. Mr. Malimath strenuously urged that the post held by the second respondent should have been equated to that of an Executive Engineer of the other areas and that if that had been done, the second respondent would have been placed above many of the Executive Engineer of the other areas and that if that had been done, the second respondent would have been place above many of the Executive Engineers allotted to the new State of Mysore from other areas and in the circumstances the petitioners who were only Assistant Engineers on 31-10-56 cannot at all have any legitimate grievance against the order passed by the first respondent fixing the rank of the second respondent above C.L. Subba Rao (Serial No.1) in the Provisional Inter-State Seniority list of Assistant Engineers (Class I)

(7) It is clear from the perusal of the Notification dated 22nd March 1957 issued by the first respondent that the post held by the second respondent as an Executive Engineer in Coorg State was equated to that of an Assistant Engineer of the other areas after considering all the relevant factors. The basis for equating the post held by the second respondent on 31-10-1956 with that of the Assistant Engineer of other areas is stated as under in the said Notification:

'4.The post of Executive Engineer in Coorg is equated to that of an Assistant Engineer of other areas in the light of the following facts and on the principles referred to in para 2.

(a) That he was appointed as an Assistant Engineer on probation and was confirmed as Executive Engineer after the period of probation.

(b) That he was in charge of only minor irrigation works and community project and had under him four subdivision officers (Non-Gazetted).

(c) That the outlay incurred in his jurisdiction does not exceed two or three lakhs of rupees.

(d) That he was given a pay scale of Rs. 350-25-600.'

It is, therefore, idle for the respondents to contend that all the relevant factors had not been taken into consideration while equating the post of the second respondent while equating the post of the second respondent to that of an Assistant Engineer in other areas at the time the first provisional Inter-State Seniority list was prepared and notified. Once the first respondent prepared a common Provisional Government list in accordance with the principles laid down by the Central Government and published the same and called for representations from Government servants who were aggrieved by it within the time specified in the said Notification, it had only to collect all the representations and forward them with the list to the Central Government. Decisions on those representations only be taken by the Central Government in consultation with the Advisory Committee under section 115 of the States Reorganisation Act.

Admittedly the second respondent and many other Government Servants who were aggrieved by the equation of posts and fixation of their seniority in the Inter-State Seniority list referred to above had filed their written representations within the time prescribed in the Notification referred to above. All that the State Government had to do was to forward the Provisional Inter-State Seniority list along with the objections or representations filed by the several Government servants to the Central Government for decision in consultation with the Advisory Committee and for publication of the Final Inter-State Seniority list. The first respondent did not admittedly adopt this course. On the other hand, it proceeded to revise the Provisional Inter-State Seniority list taking into consideration the representations made by the second respondent and notified its intention to fix the rank of the second respondent above C.L. Subba Rao and called for objections from persons that are dissatisfied by the proposal and persons that are dissatisfied by the proposal and has after considering some of the objections received in response to it, overruled them & published the second list fixing the rank of the second respondent above C.L. Subba Rao (Sl. No. 1) the first list. The result is that the first respondent has prepared and issued a 'second' of revised Provisional Inter-State Seniority list prepared and issued by it in the year 1957. The question is whether the first respondent is competent to do so. This question came up for consideration before a Division Bench of this Court in P. Lakshmanan v. State of Mysore, 1963(1) Mys. L.J. 472. This Court held that the State has no such right to effect a correction respect of a particular Government servant and observed as follows:

'The published list, as already stated, is an act of the State amounting to a comprehensive decision tentative though it be as to relative seniority of a certain class or category of its servants. If on representations by certain individuals alone corrections are effected in the list there is a clear possibility of interests of others being adversely affected. Seniority itself is a relative conception and not an absolute one. Therefore, when a certain gradation of seniority is arrived at in respect of a certain class of persons any disturbance of the situation of any one person in that list will at least in the eye of the law affect the relative position of several other person in the same list. Consequently when a list itself is published as a decision simultaneously governing a large number persons before a change could be made therein representations of all those that have made representations in respect of that list will have to be taken into account simultaneously so that the relative or mutual effect which one representation may have upon another or others may be properly considered by the Government and a just and correct conclusion arrived at. If without making any such general examination leading to a general revision of the entire list one person who is a junior under the existing list to another is treated as a senior to that other person there could hardly be any doubt that such act can well be described as arbitrary or whimsical--whimsical because the treating of a person junior to another as a senior to him would be unaccountable on the basis of the published list and arbitrary because it picks out one person from a class for special treatment and therefore, involves an infringement of the guarantee of equal treatment before the law under Art. 14 of the Constitution which the State is bound to extend to all citizens including its servants.'

The question is whether the revision of 1957 list was made after taking a comprehensive decision of all the representations filed by the several persons aggrieved or is one done for the purpose of assigning a rank to the second respondent on the basis of his representation only? We have no doubt in our minds that there has not been a comprehensive revision of the first Inter-State Seniority list of Assistant Engineers on the basis of the representations received by all the officers in response to the Notification issued in 1957. As a matter of fact the second respondent has not asserted in his counter-affidavit that the second list prepared and issued in 1963 was the result of a comprehensive revision after taking into consideration all the representations filed by the several persons simultaneously. Nor has the first respondent asserted in the counter-affidavit that it is as a result of the comprehensive revision of the list in the light of the representations made by several persons that the second list was prepared and issued by it. In these circumstances, we are of the opinion that the second or revised Provisional Inter-State Seniority or gradation list issued by the first respondent in the year 1963 was beyond its competence and authority and is liable to be struck down.

(8) It is urged by Mr. Malimath, learned counsel for the second respondent that his client has been contending that the post of an executive Engineer in Coorg, which he was holding at the time of integration, is equivalent to that of an Executive Engineer of other areas; and that he should be treated as an Executive Engineer and equated as an Executive Engineer and placed above the petitioners and when it is so the petitioners who were Assistant Engineers on the relevant date viz., 31/10/1956 cannot have any legitimate grievance if the second respondent is placed above serial No. 1 in the list of Assistant Engineer (Class 1). We are unable to appreciate this argument. It is significant to note that the equation of post held by the second respondent to that of the Assistant Engineer has not been revised by the first respondent. It is the rank that had been assigned to the second respondent in the equated cadre that has been altered or corrected by the issue of the second Provisional Inter-State Seniority list. The question as to whether the second respondent's claim to be equated to the cadre Executive Engineer in other areas is a matter which is yet to be decided by the Government of India. We refrain from expressing any opinion on the merits of the above claim of the second respondent.

But so long as the post held by the second respondent in the Second respondent in the State of Coorg has been equated to that of an Assistant Engineer in the other areas it is only the length of service that had to be taken into consideration for determining the relative seniority as between the several so is clear from the circular instructions issued by the Government of India to the first respondent. It is on the basis that he was continuously holding the post which was equated to that of Assistant Engineers from 10th August 1955 his rank was fixed at Serial No.210 in the list of Assistant Engineers. Strangely enough, in spite of clear instructions issued by the Government of India, the first respondent proceeded to refix the seniority of the second respondent ignoring the length of service in the equated cadre and categorically stated in the Notification issued in 1963 that

'nothing prevents Government from assigning seniority to a certain officer otherwise than on the basis of length of continuous service in the equated cadre, if the assignment of such a seniority is called for in view of the peculiar nature of the post held by the officer on 31-10-1956'

what is more interesting is that the first respondent has repeated it in the counter-affidavit filed on its behalf by the Under-Secretary to Government, P.W.D. in the following terms:

'The general principle for fixation of rank is that the length of continuous service whether temporary, officiating or permanent should be taken into account. The responsibilities, duties and powers exercised by the Executive Engineer of Coorg as on 1-11-1956 is erstwhile Coorg State were intermediate between those of the Assistant Engineers and the Executive Engineers of the regular P.W.D. *[But nothing presents Government from assigning seniority to a certain officer otherwise than on the basis of length of continuous service in the equated cadre, if the assignment of such a seniority is called for in view of the nature of the post held by the officer']'

*[Bracketted portion underlined (here into ' ') in judgment--Ed.']

We have no doubt whatsoever, in our minds that this claim of the first respondent is untenable. Fixation of seniority on consideration other than mentioned in the Circular Instructions issued by the Central Government to the States is not at all permissible. We, therefore, unhesitatingly hold that the second Provisional Inter-State Seniority list issued by the first respondent re-fixing the seniority of the second respondent above C.L. Subba Rao (Serial No. 1) in the first Provisional Inter-State Seniority list of Assistant Engineers prepared and issued in 1957 is illegal and is liable to be struck down.

(9) It was urged by Mr. Malimath learned counsel for the second respondent that the first respondent had not finally decided that the post of the Executive Engineer in Coorg is equivalent to that of the Assistant Engineers in other areas even for the purposes of preparation and publication of the provisional list and therefore, the first respondent was entitled to re-fix the rank of the second respondent which had been tentatively fixed in the first list. In support of this argument. Mr. Malimath relied on the note made against the name of the second respondent in the last column in the list published on 22-3-1957 which is to the following effect:-'Belongs to Coorg P.W.D, Provisional, pending clarification regarding the nature of service whether regular or contract appointment.' We are unable to accept this contention. What all the note indicates is that the first respondent had yet to get clarification as to whether the second respondent was a regular Government Servant of the State or whether his services had been taken on contract basis.

(10) It is finally urged by Mr. Malimath learned counsel for the second respondent that in view of the fact that both the petitioners have since been promoted as Superintending Engineers and in view of the fact that the entire question relating to the equation of posts and fixation of seniority is before the Government of India, even if we come to the conclusion that the second list prepared and issued by the first respondent is beyond its authority we should not strike it down. It is on the other hand urged by Sri. Narasimha Murthy learned counsel for the petitioners that there is every prospect of the second respondent being appointed to officiate as a Chief Engineer as against one of the posts created for expediting the development programmes undertaken by the first respondent in Fourth Five Year Plan period and therefore, it is necessary that we should issue a Writ of Certiorari quashing the second Notification.

It is further urged that in spite of the fact that the first respondent had issued what was styled as a 'final Inter-State Seniority list' in 1960, it had not taken necessary steps to get the same finalised by the Central Government till now and that the Central Government will take some time to publish the final list after scrutinizing the large number of written representations and in the meanwhile it is quite possible that the first respondent will make promotions to higher posts on the basis of the impugned list and we should, therefore, strike it down. We cannot say that the apprehensions of Sri. Narasimha Murthy are not well founded. Moreover, once we come to the conclusion that the second list issued by the first respondent was beyond its competence we should strike it down.

(11)We, therefore, allow these Writ Petitions and make an order quashing the Government Order dated 20th July 1963 bearing No. GAD 20 IGS 62 placing the second respondent above C.L. Subba Rao (Serial No. 1) in the provisional Inter-State Seniority list 1957, of Assistant Engineers. The petitioners will get their costs from the respondents. We allow only one set of costs. Advocate's fee Rs. 150(Rupees One Hundred and Fifty only).

(12) Petitions allowed.


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