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C.P. Mary Vs. State of Travancore-cochin - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberO.P. No. 132 of 1955
Reported inAIR1958Ker85; (1958)IILLJ717Ker
ActsConstitution of India - Articles 226, 311(2) and 320(3); United States of Travancore-Cochin Public Service Commission Ordinance, 1124 - Sections 4(2)
AppellantC.P. Mary
RespondentState of Travancore-cochin
Appellant Advocate T.M. Mohalingam Iyer, Adv.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases ReferredDevasahayam v. State of Madras
service - seniority - article 226 of constitution of india and section 4 (2) of united states of travancore-cochin public service commission ordinance, 1124 - petitioner employed in service of state - contended that she should be ranked above all respondents - no discrimination in preparing list - court cannot affect ultimate right of government to grade their employees - petition failed as in absence of violation of constitutional guarantees no civil servant can redress under article 226 against governmental order made against him. - - anyhow it was for them to complain if at all and they had not done so. even otherwise, the principle has become well settled that the formulation of a proper integration rule or the right invocation or application thereof in particular case apart of..........had come to occupy the post of a permanent clerk on rs. 25-40 in the education department of the cochin state and was serving as an officiating clerk in the labour commissioner's office in that state on rs. 30-75 and drawing a pay of rs. 50/-. on the integration of the services being taken up, a set of common principles applicable to all departments was first proposed by certain government proceedings dated 27-9-1950. vide ext. p.the difficulties of the matter consequent on the divergent policies which the two governments had followed soon compelled the adoption of certain modifications. vide exts. i and ii, government proceedings dated 31-8-1951 and 9-4-1952. but as difficulties still per-gisted, government decided to take up the integration of the several departments on principles.....

Varadaraja Iyengar, J.

1. This is a petition under Article 226 of the Constitution. The petitioner is C. P. Mary employed In the service of the 1st respondent State of Travancore-Cochin as clerk in the Assistant Labour Commissioner's Office at Alleppy. Her complaint is that she has not been assigned her due rank in the ministerial service in the Labour Department when the integration of the services in the two States of Travancore and Cochin was effected. Respondents 2 to 28 are other clerks in the Department, who, according to the petitioner, have been wrongly given higher rank. In view of the importance of the question raised, the petition was referred to a Division Bench by the learned Single Judge before whom it came on in the first instance.

2. The integration of the Travancore-Cochin Stare took place on 1-7-1949. By that date, petitioner had come to occupy the post of a permanent clerk on Rs. 25-40 in the Education Department of the Cochin State and was serving as an officiating clerk in the Labour Commissioner's office in that State on Rs. 30-75 and drawing a pay of Rs. 50/-. On the integration of the services being taken up, a set of common principles applicable to all departments was first proposed by certain Government Proceedings dated 27-9-1950. Vide Ext. P.

The difficulties of the matter consequent on the divergent policies which the two Governments had followed soon compelled the adoption of certain modifications. Vide Exts. I and II, Government Proceedings dated 31-8-1951 and 9-4-1952. But as difficulties still per-gisted, Government decided to take up the integration of the several departments on principles adapted to each while adhering substantially to the general principle originally evolved. On this basis the procedure for integrating the personnel in the Labour Department was indicated in Government proceedings dated 19-3-1953, vide Ext. III.

Conformably to these directions a combined list of officers of the Travancore and Cochin branches as on 1-7-1949 was prepared by the Service Advisory Committee and brought up to 1-4-1953, eliminating those who had retired or gone out of the department and filling up the vacancies in the various grades which arose after 1-7-1949 from the combined list in the order of seniority. This list was approved by Government and is filed as Ext. A in the case. The petitioner thus got a permanent post of clerk on Rs. 30-45 as on 1-4-1953 with the 26th rank among the 27 clerks in that grade.

Thereafter the contentions of aggrieved officers were heard and the list was finalised. This final list is filed in the case as Ext. B. Petitioner had made her own representation as above but even before final orders were passed on 30-12-1954 rejecting it, she approached the High Court with a writ motion as herein, though for a lower ranking and with the State alone as the respondent. Vide Ext. IX original petition No. 151 of 1954. On objection raised by the State as to nonjoinder of necessary parties, the original petition was dismissed by the High Court on 14-6-1955 with liberty reserved however to make fresh motion on proper lines.

Hence this petition dated 27-6-1955 impleading also respondents 2 onwards and praying for directions to the 1st respondent-State that she should be ranked above all the respondents 2 to 28 and for ancillary reliefs.

3. The affidavit filed by the petitioner in support of her petition raised various grounds and was largely discursive. The 1st respondent-State and other respondents refuted the many assumptions made in that affidavit and contended that the petition was not maintainable and liable to be rejected in limine and was also unsustainable on the merits. Ultimately the issues between the parties have been nan-owed and learned counsel for the petitioner was content to rely on the following four grounds:

'1. In giving effect to the integration of the clerical staff of Labour Department the integration rules have been flagrantly violated and the petitioner has been deprived of her legitimate rank.

2. Her further case is that the violations of the integration rules are not innocent but mala fide in the moral sense. They are mala fide also In the sense of careless and ruthless disregard of rules, Lachchman Singh v. Inspector General of Police, Pepsu Govt Patiala, AIR 1956 Pepsu 19

3. The violations have resulted and are even aimed at that kind of discrimination against her which attracts the prohibition contained in Article 14 of the Constitution.

4. It is her further case that the mandatory provisions embodied in Section 4 (2) of Ordinance VI of 1124 (TC) and Article 320(3)(b) of the Constitution have been violated in the sense that persons promoted or transferred in breach of those provisions have been assigned ranks higher than hers in the integrated list. She contends that the breach of these provisions which are mandatory would nullify the promotions and transfers in question with the result that the persons so posted should be looked upon as non est.'

We will deal with these grounds seriatim but before we do so, we think it will be useful to state in more detail the exact principle as adopted for the integration of the clerical staff of the Labour Department and as applied in the petitioner's case.

4. Before 1-7-1949, there were 39 permanent posts in the clerical section of the Labour Department, 30 in Travancore and 9 in Cochin. The Travancore grades were Rs. 25-30, Rs. 30-45 and Rs. 45-75. The Cochin grades were Rs. 30-75 and Rs. 80-125. The total number of clerks for the Travancore-Cochin State as sanctioned was only 37, 28 of these being allotted to Travancore and 9 to Cochin, the Cochin grade of Rs. 30-75 being equated to the Travancore grades of Rs. 30-45 and Rs. 45-75. In the grade of Rs. 45-75, 7 posts were allotted to Travancore and one to Cochin and in the grade of Rs. 30-45, 21 were allotted to Travancore and 6 to Cochin.

On the eve of the integration there were 8 permanent posts in Travancore on Rs. 45-75 all permanently filled up and 7 permanent posts in Cochin on Rs. 30-75,6 of which had been permanently filled up. The petitioner was officiating in this grade. The reduction consequent on the integration entailed therefore the retrenchment of one permanent incumbent on Rs. 45-75 in Travancore and of 6 others in the equated grade of Rs. 30-75 in Cochin. This one post in Travancore was treated as supernumerary while the 6 posts in Cochin were absorbed in the permanent but lower cadre of Rs. 30-45 with the result that the petitioner was unable to obtain any permanent post as on 1-7-1949.

She was able to get such post in the scale of Rs. 30-45 in a retirement vacancy on 31-1-1951 so as to be promoted to the higher grade of Rs. 45-75 only after 1-4-1953 and with effect from 28-10-1954.

5. According to the petitioner the violation of the integration rules referred to in Ground No. 1 consisted in ignoring the principles embodied in what she styled the 'basic Integration G. P. dated 27-9-1950' viz., Ext. F, firstly that a separate integrated seniority list of persons who had officiated on a higher grade prior to 1-7-1949 should be maintained for purpose of preferment to persons in the next lower grade, in the matter of filling up vacancies arising on or after 1-7-1949 and secondly that in filling up vacancies arising in a grade on or after 1-7-1949 supernumeraries got the first precedence, than those who had been officiating before 1-7-1949 and lastly persons with permanency in lower grade.

The argument was that the 6 Cochin personnel who were retrenched, in the reorganisation on 1-7-1949 from their permanent posts of Rs. 30-75 should have been treated as supernumeraries in the grade of Rs. 45-75. Their relegation however to the 6 permanent posts in the lower grade of Rs. 30-45 had led to the result 'that the petitioner's claim on account of her officiation in the grade of Rs. 30-75 previous to 1-7-1949 to confirmation as a permanent clerk on Rs. 30-45 on 1-7-1949 itself was lost and she had to wait till 31-5-1951 to get confirmed on Rs. 30-45.

The State's reply in this connection was that the general principle regarding the preferential claims of the personnel who had officiated in the same or equated grades before 1-7-1949 though favoured in the G. P of 1950 had been abrogated when Ext. III, Integration G. P. dated 19-3-1953 was specifically framed for purpose of the Labour Department. There was nothing wrong therefore in the fitting in of the 6 permanent hands of the Cochin branch who could not be absorbed in the sanctioned posts on Rs. 45-75 in the 6 posts on Rs. 30-45 subject to the retention of their pre-integration scale of Rs. 30-75 as personal to them.

Anyhow it was for them to complain if at all and they had not done so. We think that the answer of the State as above is quite acceptable and the petitioner's contention as to violation of any integration rule is, on the whole, devoid of all merits. Even otherwise, the principle has become well settled that the formulation of a proper integration rule or the right invocation or application thereof in particular case apart of course from any question of mala fides or discrimination, is not, justiciable under Article 226 of the Constitution. See Krishna Pilial v. State of Travancore-Cochin, ILR (1956) Trav-Co. 1339 (B); and Raghava Warrier v. State of Trav-Co., 1957 Ker LT 693: (AIR 1958 Kerala 79) (C).

These decisions have held that mere infringement of service rules framed by the Government In the exercise of its executive or administrative jurisdiction would not afford a cause of action to the person affected. His remedy lay with the Government and not through the Municipal courts.

The principle is that the Government had the power to change the rules relating to the conditions of service at any time, at its pleasure and no legal action would lie at the instance of the Government servant concerned to enforce his alleged right to benefits or privileges thereunder e. g., to particular seniority or promotion.

For independent of any violation of the Constitutional guarantee embodied in Article 311 of the Constitution a breach of service rule regulating conditions of service would not by itself furnish a civil servant wronged by such a contravention with a cause of action or empower the Court to grant redress. We therefore overrule the first of the contentions raised on behalf of the petitioner.

6. Taking up the second and third grounds as to mala fides and discrimination the allegation as to mala fides in the moral sense has not been sought to be maintained before us but it is urged there was a total lack of necessary care and caution. But this aspect even assuming it would do, cannot arise in the light of our conclusion already expressed that there had been no violation in fact of the integration rules in the instant case. The charge of discrimination it was said consisted in according differential treatment to the Travancore incumbent as contrasted with his Cochin colleagues.

For while he was treated as supernumerary in his original grade, the Cochin personnel were fitted in the permanent posts of the lower grade. It is argued that it was the result of this 'unjustifiable discrimination' against the Cochin personnel, that the confirmation of the petitioner in the Rs. 30-45 grade had to be put off till 31-5-1951. The argument is without any substance for the Cochin personnel were not similarly circumstanced seeing that they could not be declared supernumeraries when there were enough permanent posts to absorb them and they were so absorbed.

We should add that learned Government Pleader was prepared to contend that, 'mala fides' and 'discrimination', even if available, cannot affect the ultimate right of Government to grade their employees, according to their own discretion. But it is unnecessary to consider that aspect in the light of our findings as above.

7. The next and last question is how far the ranking in the integrated list of the petitioner's seniors, had been affected, for want of consultation with the Public Service Commission as regards their transfers or promotions. Section 4 (2) (b) of the Travancore-Cochin Ordinance VI of 1124 and similarly Article 320(3)(b) of the Constitution no doubt provided for such consultation, 'in making promotions and transfers from one service to another and on the suitability of candidates such .................... promotions and transfers'.

But the integration of the Labour Department took place on basis of principles specially formulated under Government Proceedings Ext. III, of 1953. There was also the enactment of the Public Service (Consultations) Regulations 1952 dispensing with the necessity for consultation with the Commission on the matters herein, as regards ranking of departmental subordinates.

It follows therefore that the non-consultation, with the Public Service Commission after 1-7-1949 with respect to the transfers and promotions until 19-3-1953 on which date the integration list was prepared, does not really affect the ranking as per the integrated list Ext. B.

It is also possible to say that the word 'shall' in Section 4 (2) of the Ordinance and Art, 320 (3) of the Constitution, is in the context only directory and not mandatory and the non-compliance with the direction would not render a promotion or a transfer otherwise regularly and validly made any way ineffective or inoperative. See Shivanandan v. State of W. B., 58 Cal WN 18: (AIR 1954 Cal 60) (D). Even otherwise, how-is it possible to treat the promotions and transfers in question already given effect to, as non est at this stage, at the instance of the petitioner, and in these proceedings? This last contention therefore also fails.

8. It follows that there is no merit in the writ motion herein and it has to be repelled. We therefore dismiss the petition but we do not make any order for costs.

Koshi, C.J.

9. I agree, but in so doing desire to add a few words.

10. So early as August 1952, In the Judgment of the Division Bench which heard Narayana Iyer v. State, ILR (1952) Trav-Co 756 (reported as Varadaraja v. State of Travancore-Cochin in AIR 1952 Trav-Co. 140 (E) ), I had after reviewing a number of authorities, occasion to point out that Service Regulations and Standing Orders of the State only constitute rules of guidance for the Government and their officers and that any violation thereof will not confer a right of action for the aggrieved civil servant against the Government.

Another Division Bench of the Travancore-Cochin High Court of which I was a member affirmed this view. Zainnudin. v. Travancore-Cochin State, 1954 Kerala LT 966: AIR 1954 Trav-Co. 32 (F). More recently a Full Bench of this (Kerala) High Court re-affirmed the rule laid down in the two earlier decisions see Mohamed V State of Kerala, 1957 Ker LT 608: (AIR 1958 Kerala 1) (G). The two decisions referred to by my learned brother in paragraph 5 of his judgment, one' of the Travancore-Cochin High Court' and the other of this court, enunciated the same rule of law.

All these cases arose from complaints brought before the High Court by civil servants of the State for redress against executive orders of the Government and the court consistently took the view that no legal or justifiable right was involved in those cases. A similar view was also taken in D. P. Krishna Das v. State of Travancore Cochin, ILR (1955) Trav-Co. 404 (H), where the learned Judges of the Division Bench iur-ther pointed out that sn executive order is liable to be changed by another executive order.

11. In a batch of Writ Petitions before Raja-gopala Ayyangar J. of the Madras High Court reported as Devasahayam v. State of Madras, 70 M. LW 553: (AIR 1958 Mad 53) (I), questions similar to those dealt with in the decisions referred to above came up for consideration and the view that the learned Judge took in those cases conforms to the view the Travancore-Cochin High Court and this High Court have been taking on the question raised. Of the several writ Applications that were before the learned Judge we are more concerned here with an application Which Sri C. D. Venkataraman, now District Magistrate (Judicial), Kannyakumari District, made impugning a Government order varying the order of seniority assigned to him by a prior order. That application like the other applications forming the batch was dismissed and I consider it advantageous to quote here the relevant portion of the head-note to that case:

'Article 311 (Constitution) does not apply to 'any reduction in rank' not ordered as a punishment. Any other variation in the order of seniority to the prejudice of an officer in the civil service could not give rise to a right whose violation could be remedied by invoking, the jurisdiction of the Court under Article 225 ................................... Where the right, however, that is complained of as having been infringed Js the reduction in seniority it is an injury in relation to an office that was constitutionally declared to be held at the 'pleasure' of the Governor. There is therefore no basis for the contention that a legally enforceable right was infringed by the reduction in seniority.'

12. I entirely agree with the view set out in the above extract. I have been consistently adhering to this view right from Narayana Iyer's case (E). I have not so far come across any decision of the Supreme Court or of any Indian High Court which runs counter to the view taken there. In the absence of a violation of Constitutional guarantees or an infringement of the rules of natural justice no civil servant will be entitled to redress under Article 226, against any Governmental order made against him.

13. Very often civil servants come to this Court with petitions of the kind we are concerned with here and J have therefore thought it proper to add these few words to what my learned brother has said in disposing of the case before us.

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