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1971 DIGILAW 285 (KAR)

H. S. SHIVALINGIAH v. STATE OF MYSORE

1971-09-15

NARAYANA PAI, NESARGI

body1971
NARAYANA PAI, CJ. ( 1 ) PETITIONER joined service in the State Government as a Second Division clerk in the Commercial Tax Department on the 9th of September 1959. He was later promoted to the cadre of First Divn. Clerks on 20-3-1968. ( 2 ) IN January 1962, the State Government took a policy decision to permit interchangeably in the cadres of Typists and Junior Assistants' second Division Clerks in order to give some relief to the persons in the lowest rank of Class III posts doing work of a routine nature and desirous of some chance in the nature of duties or work. In the order made by them on the 24th of January 1962 in that regard they provided, among other things, that seniority in the changed cadre will he fixed with reference to the date of entry in the original cadre, which means that the entire length of service would be counted for purposes of seniority. In the said order, the Government expected or directed that action may be taken to amend suitably the Cadre and Recruitment Rules of various Departments to give effect to this policy. ( 3 ) ON the 26th of September 1964, the Governor promulgated under the proviso to Art. 309 of the Constitution a set of rules called the Mysore civil Services (Typists and Junior Asistants Second Division Clerks change of Cadre) Rules 1964. Rule 2 therein making provision for the main object of interchangeability of cadres provides as follows :"2. Change of Cadre: Notwithstanding anything in the rules of recruitment specially made in respect of any service (i) a Typist possessing the qualifications prescribed for the post of Junior Assistants /second Division Clerks may change his cadre to that of a Junior Asst. /second Division Clerk as the case may be, and (ii') A Junior Assistant I Second Division Clerk possessing the qualifications prescribed for the post of a Typist may change his cadre to that of a Typist. Rule 3 prescribes the procedure for change which should be made upon an application examined and given effect to by the appointing authority on being satisfied about the applicant's entitlement for change. Rule 4 provides that permission for change of cadre can be granted only once. Rule 5 dealing with seniority reads as follows: 5. Rule 3 prescribes the procedure for change which should be made upon an application examined and given effect to by the appointing authority on being satisfied about the applicant's entitlement for change. Rule 4 provides that permission for change of cadre can be granted only once. Rule 5 dealing with seniority reads as follows: 5. Effect of chancre of cadre: Notwithstanding anything contained in the Mysore Government Servants Seniority Rules 1957 or any other Rules, the previous service rendered bv persons permitted to change their cadre shall count for purposes of leave, pension and seniority. " ( 4 ) IN the Commercial Tax Department, Second Division Clerks and typists were placed in different categories. The cadre of First Division clerks was recruited to the extent of 50 per cent by promotion from that of Second Division Clerks and as to the balance by direct recruitment In the cadre of typists, the promotional cadre was that of Stenographers which was recruited to the extent of 33 1/3 per cent by promotion and 66 2/3 per cent by direct recruitment. The basic educational qualification for recruitment to the cadres of Second Division Clerks and Typists was the same, viz. , the passing of Secondary School Leaving Certificate Examination; typsits are required in addition to have passed either Junior Typewriting and Junior Shorthand Examination or the Senior Typewriting Examination. ( 5 ) IN September 1965. the rules were amended bv providing that before a Second Division Clerk is promoted as a First Division Clerk, he should have passed the prescribed Departmental Examinations and should have served for not less than five years in the cadre of Second Division clerks. ( 6 ) RESPONDENTS 3 to 46 were all persons in the cadre of Typists in the commercial Tax Department. Taking advantage of the change of Cadre rules, they changed over to the cadre of Second Division Clerks. ( 7 ) IN October 1967. respondents 3 to 41 and 46 were promoted to the cadre of First Division Clerks. In computing the five vears' service necessary for such promotion, their previous services in the cadre of Typists were also taken into account in view of Rule 5 of the Change of Cadre rules. ( 8 ) PETITIONER was reverted. He filed WP. No. 2419 of 1967 challenging the reversion. In computing the five vears' service necessary for such promotion, their previous services in the cadre of Typists were also taken into account in view of Rule 5 of the Change of Cadre rules. ( 8 ) PETITIONER was reverted. He filed WP. No. 2419 of 1967 challenging the reversion. During the pendency of the same, he was once again promoted as a First Division Clerk, Consequently, the writ pptition was disposed of on the 18th of October 1968 leaving open the contentions of the petitioner to be considered by the State Government upon representatations to be made by him. He made such representations subsequently the Government have rejected the same on the view that Rule 5 of the change of Cadre Rules warrants the counting of service in the original cadre of Typists also and that, therefore, the petitioner can make no grievance. ( 9 ) HENCE this writ petition in which the petitioner challenges the constitutional validity of the said Rule 5 of the Change of Cadre Rules as well as the promotions of respondents 3 to 41 and 46 to the cadre of First division Clerks. He also asks for a direction to respondents 1 and 2 the state of Mysore and the Commissioner of Commercial Taxes to treat respondents 3 to 46 as his juniors in the cadre of Second Division Clerks and a declaration that his reversion on 10-10-1967 is invalid. ( 10 ) THE first argument is one ot interpretation. Mr. Rama Jois contends that the expression ' should have served for not less than 5 years in the cadre of Second Division Clerks' excludes the possibility of counting the service in the cadre of Typists before the change of cadre. But, it should be remembered that the Change of Cadre Rules permits such a change notwithstanding anything in the rules of recruitment specially made in respect of any service and also provides in the fifth rule thereof that previous service rendered by persons permitted to change their cadres shall count for purposes of seniority. Provisions of both the Special Rules of recruitment relevant to the Commercial Tax Department and also of the change of Cadre Rules must be read together and both must be given effect to. Provisions of both the Special Rules of recruitment relevant to the Commercial Tax Department and also of the change of Cadre Rules must be read together and both must be given effect to. When that is done, it is impossible to come to any conclusion other than that when a typist is permitted to change his cadre and enters the cadre of Second Division Clerks, he becomes a member of the said cadre of Second Division Clerks and that his previous service as typist must be equated to or given the same value as the service in the cadre of Second division Clerks. If the provision of the Recruitment Rules of the Commercial tax Department is so read as to exclude from consideration the service rendered as typist for the purpose of seniority, it will result in a disobedience of the special provisions of the Change of Cadre Rules. ( 11 ) WE do not therefore accept the argument that the five years' period of service in the cadre of Second Division Clerks necessary for promotion to the cadre of First Division Clerks in the Commercial Tax Department must be counted only after the date on which a typist changes his cadre to that of Second Division Clerks. We hold that by virtue of Rule 5 of the Change of Cadre Rules, he is entitled to have his previous service as typist counted for the purpose of seniority and therefore for purposes of promotion also. ( 12 ) THE next argument is that the Change of Cadre Rules particularly rule 5 thereof is violative of Art. 14 of the Constitution. Although the prayer for declaration of invalidity is limited to Rule 5, arguments have been addressed with a view to make out that the entire set of rules is open to the said attack. ( 13 ) DEALING with the principal Rule 2 providing for change of cadres, mr. Rama Jois contends that the result of such a change is to put two categories which are essentially different from each other into the same category and treat them as similar to one another. That position, according to him, is emphasised by Rule 5 which equales the service as a typist with the service as a Second Division Clerk. ( 14 ) RELIANCE is placed principally on two observations of the Supreme Court. That position, according to him, is emphasised by Rule 5 which equales the service as a typist with the service as a Second Division Clerk. ( 14 ) RELIANCE is placed principally on two observations of the Supreme Court. ( 15 ) THE first of them occurs in the judgment of the Supreme Court in the case of All India Station Masters' and Assistant Station Masters' association v. General Manager, Central Railway, AIR 1960 SC 384 . The passage occurs in paragraph 11 of the judgment at page 387 of the Report :"as on the admitted facts the Road-side Station Masters and guards are, as already stated, recruited separately and trained separately and have separate avenues of promotion, the conclusion is irresistible that they form two district and separate classes as between whom there is no scope for predicating equality or inequality of opportunity in matters of promotion. " ( 16 ) AS this passage itself makes clear, the Supreme Court was dealing with two different categories and the proposition made is that, as between the said two categories, it is impossible to raise any argument of equality or inequality, they were not aeanng with the case ot amalgamation of two categories or absorption of a person from one category into another category. ( 17 ) NOW in the case before us, as we have already pointed out, the basic educational qualification lor recruitment as Second Division Clerks as well as Typists is the same, viz. , the passing of Secondary School Leaving certificate Examination. Typist has, in additon, to acquire the qualification of having passed some examinations in typing and shorthand. Rule 2 of the Change of Cadre Rules permits a person from one to go into another cadre, only if he has the qualifications necessary lor being recruited to that other cadre. When such a condition is stipulated for the change of cadre, the result is that in the matter of qualifications there is complete equation. At the time the Change of Cadre Rules were promulgated, rules prevalent for recruitment to the cadres of typists as well as becond division Clerks provided for similar tests at the time of recruitment, viz. , a viva voce examination to test the mental alertness of candidates. Even the Special Rules later promulgated in the year 1. 966 provide the same syllabus so far as the general educational qualification is concerned. , a viva voce examination to test the mental alertness of candidates. Even the Special Rules later promulgated in the year 1. 966 provide the same syllabus so far as the general educational qualification is concerned. They prescribe a written examination on General English and General Knowledge and a viva voce examination to test the mental alertness of candidates and to assess their suitability for appointment. ( 18 ) THERE is thus similarity so far as the qualifications and procedure for recruitment are concerned. ( 19 ) THE pay scales are also the same. ( 20 ) IT is said that the nature of work performed by a Second Division clerk and the nature of work performed by a Typist are completely different and that there is something superior about the work done by a second Division Clerk. If is seen, however, that they are both in the lowest rank in Class III posts and both of them do the work of a routine nature, as is clearly indicated in the order of Government dated 24th January 1962 which is in the nature of a policy decision to which we have already made a reference. Advantage is, however, sought to be taken of the fact that the said Government Order states that change of cadres is sought to be permitted to persons who desire some change in the nature of duties performed by them and the statement in the counter-affidavit on behalf of the state Government referring to the same matter in the language employed in the Government Order itself. But a change in the nature of duties referred to therein does not, in our opinion, make any difference to the essential fact that both the Second Division Clerks and the Typists who are in the lowest rank of Class III posts perform what are merelv routine duties. ( 21 ) SUCH being the clear position so far as qualifications and procedure for recruitment and the nature of duties are concerned, we do not think that there is any force in the argument that the case attaracts the following observations made by the Supreme Court in the case of State of kerala v. Haji K. Kutty, AIR 1969 SC 378 , 380:"but in enacting the Kerala Building Tax Act no attempt at any rational classification is made by the Legislature. As already observed, the Legislature has not taken into consideration in imposing tax the class to which a building belongs, the nature of construction, purpose for which it is used, its situation, its capacity for profitable user and other relevant circumstances which have a bearing on matters of taxation. They have adopted merely the floor area of the building as the basis of tax irrespective of all other considerations. Where objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality. " ( 22 ) IN the case before us, it cannot be contended that the relevant circumstances have not been taken into account or that there is anything irrational in permitting change of cadres at the lowest rank, where work done is essentially of a routine character and subject to the condition that the person seeking change has the qualifications for being recruited to the cadre into which he proposes to enter. ( 23 ) THE last argument is that while the general provision of Rule 6 of the Seniority Rules says that when a transfer is made at the request of a person and not on public interest he should give up benefit of his previous service for purposes of seniority, there is no rational basis whatever for permitting a departure thereirom in this case. For this purpose, reliance is placed on the case of Moti Ram Deka v. North East Frontier railway, AIR 1964 SC 600 , where their Lordships of the Supreme Court observed:". . . . . . but in regard to the question of terminating the services of a civil servant after serving him with a notice for a specified period, we are unable to see how the Railways can be regarded as constituting a separate and distinct class by reference to which the impugned Rules can be justified in the light of Art. 14. If there is any rational connection between the making of such a Rule and object intended to be achieved by it, that connection would clearly be in existence in several other sectors of public service. " ( 24 ) WE are not, however, dealing with any case of or rule for termination of service but one of computation of seniority. If there is any rational connection between the making of such a Rule and object intended to be achieved by it, that connection would clearly be in existence in several other sectors of public service. " ( 24 ) WE are not, however, dealing with any case of or rule for termination of service but one of computation of seniority. We have already pointed out that there is scarcely any ground to differentiate between the service as a Typist and the service as a Second Division Clerk at the lowest rank in Class III posts, both of them doing merely routine work. The provisions of Rule 6 apply to cases where a person seeks a transfer purely for personal advantage. In the present case, however, the benefit of retention of previous service for the purpose of seniority is given to a category of persons doing routine work, for affording them a change of routine with the consequence of increased or better efficiency. Hence the change permitted by the rules in question does serve some public interest. ( 25 ) FOR all these reasons, we are of the opinion that none of the prayers made by the petitioner can be granted. ( 26 ) WE might, however, observe that the counter-affidavit on behalf of the Government itself concedes that respondent 42 is junior to the petitioner. The petitioner also contends that respondent 46 was originally recruited as a local candidate whose services were regularised only on 14th november 1961. The Government may examine this case. ( 27 ) SUBJECT as aforesaid, the Writ Petition is dismissed. --- *** --- .