B. VENKATACHALACHAR v. UNION OF INDIA — 1969 DIGILAW 4 (KAR)

SOMNATH IYER, J. ( 1 ) WHEN there was a reorganisation of the States under the provisions of the States Reorganisation Act and the new State of Mysore came into being under its provisions on November 1, 1956, the petitioner was a second division clerk in the District Court. He had been transferred to this court as such second division clerk on October 8, 1956 from the post of a second division clerk in the District Court, The pay scale applicable to a second division clerk in the district Court was Rs. 40 progressively rising to Rs. 80, whereas the pay scale applicable to the second division clerk in the High court was Rs. 45 progressively rising to Rs. 100. 00. ( 2 ) THE provisional inter-State seniority list which was published by the registrar of this court on June 18, 1965 assigned, the first rank to the petitioner in the cadre of the second division clerks of this court. That list was a provisional inter-State seniority list pertaining to the non-gazetted officers of this court. But bv the final inter-State seniority list which was prepared by the Central Government and published bv the Registrar of this court on August 22, 1967, the petitioner was assigned the 42nd rank. In this writ petition the petitioner asks us to quash that part of the final Inter-State seniority list which brought down his rank in that way and asks us to issue a mandamus directing the restoration of the first rank assigned to him by the provisional list published by the Registrar of this Court. ( 3 ) MANY submissions were made to us by Mr. Gopaliah appearing for the petitioner. The first was that the Central Government accorded him no opportunity to make his representations affainst the equivalence of posts deduced by the Central Government on which it based its final inter-State seniority list. The second submission was that the four principles which were evolved by the Government of India at the conference of Chief secretaries for determining the equation of posts did not form the foundation of the equivalence deduced bv the Central Government or the rank assigned to the petitioner. The third submission was that the Central Government depended entirely upon one of the four criteria which had to be applied and that the application of that criterion in isolation had produced an inaccurate decision with respect to equivalence. The third submission was that the Central Government depended entirely upon one of the four criteria which had to be applied and that the application of that criterion in isolation had produced an inaccurate decision with respect to equivalence. The fourth submission was that the Central Government depended substantially upon the fact that the post of a second division clerk of the District Court which the petitioner held at one stage was in a cadre different from the cadre to which the post of a second division clerk in the High Court belonged and that dependence upon that factor was not permissible. ( 4 ) ALTHOUGH the question did not directly arise before the Central Government in that form, what was quite necessary for the Central Government to decide before it could displace the first rank assigned to the petitioner by the provisional inter-State seniority list was whether the post of a second division clerk in a District Court which the petitioner held before he became a second division clerk of this Court, was a post equivalent to that of a second division clerk of this court. That question assumed importance for the reason that the period of continuous service in the post of second division clerk in the District Court when the petitioner held that post could be added to the period of continuous service in the post of second division clerk held by him in this court only if the two posts were equivalent to one another. That that is so is clear from the directions issued by the Central government on the basis of the principles evolved by the conference of chief Secretaries, one part of which reads:"in determining the seniority as between persons holding posts which are declared equivalent, length of continuous service in the equated post, including continuous officiating service, if any, should be the basis, subject to the modification that in respect of the officials belonging to the State of Madras whose 'deemed date' of promotion was determined before 1st November 1956 and that date is more favourable to the individuals than the date of continuous officiation, the government servant should have the benefit of the 'deemed date' and that on other cases, that is, where the "deemed date" was not determined on of before 1st November 1956, the rule of continuous service will prevail. "although the provisional inter-State seniority list and the Explanatory note appended to it do not in so many words say that the post of a second division clerk of a District Court, or, for that matter, of a subordinate court, was, in the opinion of the Chief Justice of this court equivalent to the post of the second division clerk of this court, it is clear that the fundamental basis of the inter-State seniority list which was provisionally prepared was that there was equivalence between those two posts; else, it was impossible for the Chief Justice to propose the assignment of the first rank in the cadre of second division clerks of this court to the petitioner. ( 5 ) THE process by which the tentative conclusion reached by the Chief justice that the petitioner should be assigned that highest rank, was, it is obvious, to deduce equivalence in the first instance between the second division clerks of the subordinate courts and the second division clerks of this court and then to add to the period of service rendered by the petitioner in this court as a second division clerk the service rendered by him as a second division clerk in the District Court. That addition was not possible on any other hypothesis except than that the two posts were equivalent to one another. ( 6 ) MR. Central Government Pleader did not dispute that when the Central government prepared the final inter-State seniority list the question whether the two posts were equivalent to one another did arise for decision by the Central Government, though, according to him, that question arose only incidentally However that may be, it is indisputable that the assignment of the proper rank to the petitioner was not possible by the Central government except after investigating the question whether there was equivalence between those two posts. ( 7 ) IT is, moreover, abundantly clear from the record of the proceedings of the Central Government which has been made available to us by the central Government Pleader that the main question to which the Central government addressed themselves in the context of the proposal that the petitioner should be assigned the first rank, was, whether the two posts were equivalent posts. That that is so is clear from the relevant part of those proceedings which reads:"the Government of India have observed that the pay scale of the second Division Clerks of the Lower Courts of the erstwhile State of mysore was Rs. 40-80 and the scale of pay prescribed for the Second division Clerks of the High Court of the erstwhile State of Mysore was Rs. 45-100. The scale of pay for the First Division Clerks of the lower Courts in erstwhile Mysore was Rs. 60-150 and the scale of pay prescribed for the First Division Clerks of the High Court was rs. 60-180. The cadres for the staff of the lower Courts were entirely different from the cadres of the High Court staff, the one having been recruited according to the Rules made under Article 309 of the Constitution and the other having been recruited in terms of the powers of the High Court as provided for in Art. 229 of the Constitution. According to rule 15 (6) of the Manual of Recruitment Rules of the erstwhile state of Mysore, a transfer from an appointment in one department to that in another was regarded as direct recruitment to the new appointment except when both the appointments were under the control of the same officer. In all the circumstances, having regard to the normal principles, Rule 587 of the Civil Rules of Practice and Circular orders of the Mysore High Court which says that all appointments to the Judicial Department shall be made subject to, and in accordance with, the general principles contained in the Government Order No. EA. 2013/92-EA-14/21/6 dated 28th November, 1921 and G. O. No. EA-2093-172-EA-14-21-6 dated 28th November 1921 and without questioning the decisions which the High Court might have taken in individual cases before the 1st November, 1956, the Government of India are of the view that the seniority of an officer in the I. S. S. List may be fixed on the basis of the continuous length of service put in by him in the equated grade and that it would not be reasonable or correct to take into consideration the service rendered by him in Lower Courts on lower scales of pay in fixing his rank in the I. S. S. List of a grade or cadre of the staff of the High Court. The representations in regard to the question of Seniority may be accepted to this extent. " ( 8 ) NOW the two steps which had to be taken in the decision of the question whether the rank which was proposed to be assigned to the petitioner could be properly assigned to him are these. The first step which the Central government had to take was to decide whether the post of a second divi- s on clerk in the subordinate courts was equivalent to the post of a second division clerk in this court. The second step was to investigate whether if those two posts could be regarded as equivalent posts, the petitioner's length of service in that equated cadre would justify the assignment of that rank. With respect to the equivalence which had to be deduced in the first instance, the four principles which had to regulate the deduction of equivalence were set out in an order made by Government of India which teads:"equation of posts in several departments should be determined on the principles mentioned below: (a) Nature and duties of the post; (b) Responsibilities and power exercised by the Officer holding the post, extent of territorial and other charge held or responsibilities discharged; (c) The minimum qualifications, if any, prescribd for recruitment to the post; and (d) The salary oi the post when the other things are equal. " ( 9 ) IT is clear from the proceedings of the Central Government which we have extracted above that out of these four principles by the application of which equivalence had to be deduced, only one was selected and not the other three. The ratiocination made by the Central Government discloses that in their opinion the two posts with which we are concerned in this writ petition were not equivalent to one another for three reasons. The first was that the pay scale of the High Court post was higher than the pay scale of the post of subordinate courts. The ratiocination made by the Central Government discloses that in their opinion the two posts with which we are concerned in this writ petition were not equivalent to one another for three reasons. The first was that the pay scale of the High Court post was higher than the pay scale of the post of subordinate courts. The second was that the post of the subordinate courts belonged to a cadre different from the cadre to which the High Court post belonged, and the third was that whereas appointments to the posts in the subordinate courts could be made only under the rules made by the Governor under the proviso to Art. 309 of the Constitution, those to the posts in the High Court could be made only in the exercise of the power created by Art. 229 of the Constitution. ( 10 ) IT is true that the salary of the post is one of the four criteria by the application of which the existence of equivalence or otherwise could be deduced. But what had to be considered in conjunction with that feature included the nature and duties of the post, the responsibilities and powers exercised by the officers holding the post including the extent of the area and the charge held and the minimum qualifications, if any, prescribed for recruitment. What the Central Government did in the present case was to consider the disparity in the pay scales between two posts in isolation without considering the effect of the disparity in the context of the other three criteria which are set out in clauses (a), (b) and (c) of the order of the Central Government which we have extracted above. Then again, the opinion formed by the Central Government that there was no equivalence between the two posts was founded upon the fact that the post of a second division clerk in the subordinate courts belonged to a cadre different from the cadre to which that post in the High Court belonged. But it is obvious that the fact that they did not belong to the same cadre did not make them unequal. The very process of integration confided to the Central Government by S. 115 of the States Reorganisation Act made it the duty of the Central Government to decide whether there was equivalence between posts which did not belong to the same cadre. The very process of integration confided to the Central Government by S. 115 of the States Reorganisation Act made it the duty of the Central Government to decide whether there was equivalence between posts which did not belong to the same cadre. If they did, the question whether they were equivalent posts could not and would not arise. ( 11 ) SIMILARLY, the dependence placed by the Central Government upon the fact that the recruitment to one post was made under rules made by the Governor under the proviso to Art. 309 of the Constitution while the post in the High Court could be filled up in the exercise of the power created by Art. 229 of the Constitution, had equally no relevance. The existence of ecuivalence between the two posts does not depend, it is clear, upon the source of the power in the exercise of which appointments could be made to them. What establishes equivalence or its absence would be the attributes of the post such as those to which the order of the Central government to which we have referred speaks, and, among those four attributes there was the application of the mind of the Central Government only to one and not to the other three, while the other two factors which were taken into consideration did not, as we have explained, have any relevance. ( 12 ) BUT it was urged by Mr. Rama Jois appearing for respondent 14, although, Mr. Central Government Pleader himself did not very rightly subscribe to that argument, that the imperfection in the process of reasoning employed by the Central Government with respect to the deduction of equivalence could not assist the petitioner's challenge with respect to the lower rank assigned to him by the Central Government. It was urged that the provisional inter-State seniority list prepared by the Chief Justice of this Court did not state that the two posts with which we are concerned were equivalent to one another and that the petitioner made no representations to the Central Government with respect to that matter. ( 13 ) IT is obvious that there is no substance in this contention. ( 13 ) IT is obvious that there is no substance in this contention. It is, we think, indisputable that the provisional inter-State seniority list was founded on the basic assumption that the two posts were equivalent to one another although in Annexure II to that list there is no reference as such to the post of a second division clerk of a subordinate court and the pay scale to which it refers is the pay scale of a second division clerk of this court. But this does not obliterate the fact that the preparation of the provisional inter-State seniority list was undoubtedly preceded by the deduction of equivalence between the two posts on the basis of which the petitioner's service as a second division clerk in the District Court was considered as part of his service as a second division clerk of this court for the purpose of seniority. In that situation it was scarcely necessary for the petitioner and it would have been very unwise on his part to make a representation against the first rank assigned to him in the provisional list. ( 14 ) MOREOVER, the question which the Central Government did have before it was whether the proposal that the petitioner should be assigned the first rank could be accepted and that question, did, as Mr. Central Government pleader very rightly submitted to us, involve an investigation into the question whether there was equivalence between the two posts, and that was the very question which the Central Government did decide, although as explained to us, that decision did not rest upon an application of the relevant criteria. ( 15 ) SO, that part of the final inter-State seniority list by which the petitioner was adversely affected and by which he was assigned the 42nd rank has to be set aside, and we set it aside, and we make a direction that the central Government should now decide by the application of the proper criteria, the rank, which could properly be assigned to him, and we make a direction as suggested by Mr. Central Government Pleader, that the petitioner should produce his representations before the Central government with respect to his claim to seniority within one month from this date. Central Government Pleader, that the petitioner should produce his representations before the Central government with respect to his claim to seniority within one month from this date. The other respondents in this writ petition will also be at liberty to make their own representations within one month from this date with respect to that matter, and the Central government will make a proper modification of the inter-State seniority list within four months from this date, if that modification is considered by them to be just and reasonable. ( 16 ) IN the view that we take, it is not necessary for us to express any opinion on the question whether there was any omission on the part of the central Government to afford an opportunity to the petitioner to make his representations with respect to the final inter-State seniority list which it eventually made. ( 17 ) MR. Gopaliah contended that we should issue a direction that pending the implementation of the direction which we have made in this judgment, promotions should be made on the basis of the provisional inter-State seniority list. On that question, we should not say anything in this writ petition. It is for the petitioner if he is so advised to seek a promotion in that way, and it would be for the concerned authority to consider his claim made on that basis. No costs. --- *** --- .