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1970 DIGILAW 101 (KAR)

DHARAMARAJ KAMAGIRIYAPPA BADYANKAL v. UNION OF INDIA

1970-07-22

BHEMIAH, NARAYANA PAI

body1970
( 1 ) THESE five writ petitions relate to the final inter-State seniority list of the non-Gazetted Officers of the Department of Industries and Commerce published in the Mysore Gazette Extraordinary of February 3, 1968. ( 2 ) THE main or the principal grievance of the petitioners in each of these cases is that the equation of the posts held by them in the parent states at the moment of reorganisation on November 1, 1956 with other posts of other intergrating States, has not been properly done, and that had it been properly done, the petitioner or petitioners as the case may be would be occupying a place in certain dther category. ( 3 ) THE petitioner in W. P. No. 1664 of 1968 was a textile or handloom inspector in Hyderabad. He has been placed in the category Executive II. He contends that he should have been placed in Technical category within the sub-category Cotton. The six petitioners in W. P. No. 1632 of 1968 who were industrial inspectors in Hyderabad and have been placed in category Executive II contend that they should be placed in category executive I. Similar is the prayer of the eight petitioners in W. P. No. 1138 of 1968 who were junior industrial inspectors in Bombay State. The petitioner in W. P. No 1077 of 1968 and the petitioner in W. P. No. 1112 of 1968 were respectively supervisor and manager of wool production centre in Bombay State; they have been placed in Technical category under the sub-category of Wool; they contend that they should be taken to category executive I. ( 4 ) IT will be seen from the nature of the contentions summarised above that the first question for examination is whether the equation of posts for purposes of determining inter-State seniority has been properlv done according to the principles properlv applicable thereto. The legal position is no longer in doubt, nor is there any obscurity or difficulty in understanding or applying those principles. The matter has been fully and elaborately discussed in two rulinps of this Court, G. B. Mudambadithava v. Union of India, 19 L. R. 71 and B. Venkatachalachar v. Union of India, (1970) 1 Mys. L. J. 222. The legal position is no longer in doubt, nor is there any obscurity or difficulty in understanding or applying those principles. The matter has been fully and elaborately discussed in two rulinps of this Court, G. B. Mudambadithava v. Union of India, 19 L. R. 71 and B. Venkatachalachar v. Union of India, (1970) 1 Mys. L. J. 222. In the former, it has been pointed out that as indicated by the Supreme Court in the case of Union of India v. P. K. Roy, AIR 1968 SC 850 , the matter is governed by the principles evolved at a meeting of Chief Secretaries and communicated to all State Governments. These principles have acquired statutory force because they have been understood as amounting to instructions issued by the Central Government under S. 117 of the States Reorganisation Act. Those principles are:"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 9tates, 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. " ( 5 ) THE first stage in the work of integration, therefore, is the determining of the equation of posts. That equation has to be made by the application of the four principles mentioned above. The effect of the decision in the case of Mudambadithava (1) is that all the four principles have to be borne in mind and applied to a case before the equation of posts can be determined by the Central Government. The case of Venkatachalachar (2) also makes it clear that it is erroneous to apply in isolation the test of the pay scales applicable to different posts. The case of Venkatachalachar (2) also makes it clear that it is erroneous to apply in isolation the test of the pay scales applicable to different posts. ( 6 ) FOR the purpose of judicial review, therefore, the question for consideration is whether the Advisory Committee upon whose advice the the Central Government has or Central Government acts and therefore has not applied its mind to the main question of the necessity of applying these principles to determination of question of equation of posts. The second question is whether in doing so, they have applied all the four principles or ignored any one of them; the cognate question is whether they have acted on an application of one or more only of the principles to the exclusion of other or others. The last question would be whether they have taken into account any other considerations which in the light of the decision should be regarded as irrelevant considerations. ( 7 ) IN the course of detailed arguments in W. P. No. 1664 of 1968 in which the several claims or arguments put forward in the affidavit of the petitioner were sought to be met by detailed affidavits filed on behalf of both the State Government and the Central Governmet, certain portions of the Advisory Committee's proceedings were read out to us which gave us the impression that the Committee had either not applied all the principles, or had misapplied them or taken into account considerations which were demonstrably irrelevant. We therefore thought it prudent to go through the entire proceedings made avaiiable to us by the Government pleader. Major part of the proceedings deals with individual claims of seniority made by different persons. The considerations relating to equation are dealt with very briefly at the commencement of the proceedings. We copy below two passages which, after going through the entire proceedings we are satisfied, should be taken as an exhaustive statement of the consideration by the Advisory Committee of the question of equation. We have not been able to find any other material anywhere else in the proceedings which may reasonably be regarded as relating to or bearing upon the question of equation of posts. ( 8 ) THOSE passages are two portions of the main paragraph No. 2. They read:"the State Government have prepared equations for the various posts in the department in two categories viz. ( 8 ) THOSE passages are two portions of the main paragraph No. 2. They read:"the State Government have prepared equations for the various posts in the department in two categories viz. , Executive and Ministeria. The Committee felt that it would be better to group the different posts in five separate categories of Executive, Technical, Instructional, ministerial and Class IV staff. The first category may consist of posts, the incumbents of which were expected to perform duties of general, administrative and supervisory nature. They would be the following: ****** b. TECHNICAL the Technical posts may consist of groups of posts, the incumbents of which were expected to possess technical qualifications and to perform technical duties like rendering of technical advice to Industrialists. Posts requiring different levels of qualification and carrying different scales of pay the incumbents of which carried different levels of responsibility have come over to Mysore from different integrating areas. It is not possible to settle reasonable equations between such posts and it is therefore not possible to place them in relative ranks of seniority. These may be arranged in groups as follows on the basis of the average cost of each time scale of pay in each separate category, the relative seniority being left undertermined. " ( 9 ) SCARCELY anything more need be stated to come to the conclusion that not only have the principles mentioned above not been borne in mind, nor a conscientious effort made to apply those principles, but there is an actual statement that it is impossible to make an equation and that therefore the Committee is recommending an alternative mode of integration which prima facie appears quite opposed to the statutorily binding principles issued under S. 117 of the States Reorganisation Act. ( 10 ) AS the indications contained in the said paragraph lead to the above conclusion and cannot lead to any other conclusion, it is of no value now to examine relative merits of the equations as set out in the affidavits on behalf of the petitioners and the affidavits on behalf of the State Government and the Central Government. The case stated in the affidavits on behalf of the Governments could at best be regarded as ex post facto justication to support the reasonableness of the ultimate equations or grouping of posts found in the impugned list. The case stated in the affidavits on behalf of the Governments could at best be regarded as ex post facto justication to support the reasonableness of the ultimate equations or grouping of posts found in the impugned list. That does not mean that we can hold that the Advisory Committee or the Central Government had applied their minds to the principles mentioned above or have applied those principles properly to the determination of the question. ( 11 ) THERE is no alternative, therefore, but to quash the list to the extent necessary. ( 12 ) FOLLOWING the form of writs issued in similar cases including the two cases cited above as well as the case of Subba Rao v. Union of India, (1969)1 Mys. L. J. 440, we issue in each of these petitions a writ quashing the place assigned to the petitioner or petitioners as the case may be in the final inter-State seniority list of non-Gazetted Officers of the department of Industries and commerce as on November 1, 1956 published in Mysore Gazette Extraordinary dated 3rd February 1968 and direct the Union of India to re-examine his or their case and place him or them at the place s appropriate to him or them in the said inter-State list after giving him or them and such of the respondents and such other persons as are likely to be affected by the ultimate decision of the Central Government, an opportunity to make representations. Time six months. --- *** --- .