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1972 DIGILAW 188 (KER)

V. v. Andrews VS State of Kerala

1972-08-11

MADATHIMYALLIL UTHUP ISAAC

body1972
JUDGMENT M.U. Issac, J. 1. These writ petitions arise out of the same facts; and they seek more or less the same reliefs. They have been, therefore, heard jointly, and are being disposed of by this single judgment. 2. There was a separate establishment called the Malaria - Filaria Wing under the Health Service Department. The staff in that wing consisted of persons directly recruited, persons deputed from the general wing of the Health Services Department, and also persons allotted to Kerala from the Madras State. By the beginning of 1964, it was noticed that the object of the establishment of that wing had been almost achieved, and that a large number of persons employed in that wing had to be retrenched. The Government, therefore, decided by G.O. MS. 603/64/H.L.D. dated 20-8-1964 to abolish the Malaria - Filaria Wing, and merge the staff for the continuance of the work of that wing with the general health staff of the Health Service Department with effect from 1-4-1964. The Government also directed by the said order that the surplus staff of the Malaria - Filaria Wing would be absorbed among the general health services staff, subject to the principles laid down therein. The Director of Health Services raised certain points regarding the implementation of the above order. The Government, by its memorandum dated 5-11-1964 clarified those points. In the light of the directions contained in the above orders, the two staffs were integrated; and the Government drew up a preliminary combined gradation list as per G.O. (P) 845/65/HLD dated 4-11-1965, and published the same in Kerala Gazette dated 7-12-1965 inviting objections from those concerned. 3. The petitioners in the above cases, except petitioner No. 6 in O.P. No.1281 of 1971, are persons recruited through the Public Service Commission indifferent posts. Petitioner No. 6 in O.P. No. 1281 is an allottee from MadrasState; and his grievances are satisfied by G.O. M. S. 315 dated 6-10-1971,which the Government issued during the pendency of these writ petitions. Iam, therefore, dealing only with the case of the remaining petitioners in thisjudgment. There were four scales of pay, namely Rs. 40-120, Rs. 60-150, Rs.80-180 and Rs. 150-250 for the different posts among the staff of the Malaria -Filaria Wing, immediately before its merger with the general staff of the Health Services Department. Iam, therefore, dealing only with the case of the remaining petitioners in thisjudgment. There were four scales of pay, namely Rs. 40-120, Rs. 60-150, Rs.80-180 and Rs. 150-250 for the different posts among the staff of the Malaria -Filaria Wing, immediately before its merger with the general staff of the Health Services Department. The posts carrying the above scales of pay in the general staff were Health Assistants Grade II, Health Assistants Grade I, Health Inspectors Grade II, and Health Inspectors Grade I. The petitioners were immediately before the said merger holding posts in the scales of Rs. 40-120 and Rs. 80-180. Therefore, in the combined gradation list, they were put in the cadres of Health Assistants Grade II, and Health Inspectors Grade II; and their ranks in those cadres were fixed in accordance with the principles enunciated in G. O. MS. 603 of 1964. 4. The Government, by its order dated 6-12-1956 had prescribed "Sanitary Inspector's Test Bombay or Madras" or "Health Inspector's Certificate of the Medical College, Trivandrum" as the qualification for the post of Health Assistants. It also directed, by a subsequent order dated 27-5-1959, that promotions to higher cadres would be restricted to qualified personnel. However, a subsequent order dated 6-3-1961 was passed to the effect that the above restriction would not apply to promotions to the cadre of Health Assistants Grade I. No minimum general educational qualification was fixed for these posts. None of the petitioners had the Sanitary Inspector's test or the Health Inspector's Certificate. In fact most of the persons recruited in the Malaria - Filaria Wing did not have this technical qualification, as it was not necessary for them. Their minimum qualification was E.S.L.C. or an equivalent education; and quite a number of them had higher general educational qualification. It is now necessary to notice the principles laid down by G. O. MS. 603 of 1964 for the merger of the staff of the Malaria - Filaria Wing with that of the general staff. They were: "1. Personnel of Malaria and Filaria wing who were having a rank among the general health services staff will be reverted to their original rank in the general health services. They will not carry with them the benefit of promotions they secured under Malaria and Filaria wings. 2. They were: "1. Personnel of Malaria and Filaria wing who were having a rank among the general health services staff will be reverted to their original rank in the general health services. They will not carry with them the benefit of promotions they secured under Malaria and Filaria wings. 2. Personnel of Malaria and Filaria wing not having a rank among the general health services staff but recruited by P.S.C. to Malaria and Filaria Section and who have to be absorbed in general health services will take rank in the general health services with advertence to the date of their effective advice by the P.S.C. in the respective cadre to which they could have been absorbed with exemption from technical qualification if necessary in the Health Services Department on that date. To cite an example, a field Assistant on Rs. 40-120 recruited in the Malaria and Filaria wing will be accommodated as a Health Assistant on Rs. 40-120 in the General Health service, giving him rank based on the date of his effective advice as Field Assistant although the Field Assistant concerned may not be having the Health Inspector's training or its equivalent. Government however wish to make it clear that these persons who were rendered surplus and had to be retrenched from Malaria wing on 31-3-1964 are being appointed to posts requiring technical qualifications as mentioned above purely on a provisional basis. They will be afforded opportunities for acquiring such qualifications at the earliest possible opportunity. They will not be allowed to take the advantage of promotions they might have secured in Malaria and Filaria to the general Health Services. 3. Appointment to the posts for National Malaria Eradication Programme and National Filaria Control Programme should be made by duly qualified senior persons from among the combined seniority list prepared as above. As far as possible those who do not possess Health Inspector's training from among the surplus field staff of the National Malaria Eradication Programme may be accommodated in these posts and those having Health Inspector's training may be appointed in other posts in the Health Services Department requiring such qualification. 4. As far as possible those who do not possess Health Inspector's training from among the surplus field staff of the National Malaria Eradication Programme may be accommodated in these posts and those having Health Inspector's training may be appointed in other posts in the Health Services Department requiring such qualification. 4. Regarding absorption of surplus staff recruited by the P.S.C. in other suitable vacancies attention of the Director of Health Services is invited to R.4(b) of the Kerala Public Service Commission (Consultation) Regulation,1957 and item 5 under the heading subordinate services in the annexure attached to the said rules according to which consultation with the P.S.C. is not necessary. The D.H.S. will follow the above rules as guiding principles in appropriate cases. 5. When absorption is not possible and retrenchment is necessary the D.H.S. will follow State wise juniority for those recruited State wise and District wise juniority for those recruited on District wise basis. 6. If any posts in the Health Services Dept, are declared posts then the absorption of surplus National Malaria Eradication Programme personnel, against such posts or the appointment of any other personnel to the posts will be according to the orders issued thereon." It is clear from the above G. O. and the clarification order in respect thereof that the staff of the Malaria - Filaria Wing was exempted from the technical qualification and appointed in the cadres of Health Assistants and Health Inspectors on a provisional basis, and on condition that they would be afforded facilities for acquiring the said qualification at the earliest opportunity. The petitioners have accordingly acquired the necessary technical qualification, and on the basis of the ranks assigned to them in the combined preliminary gradation list, they have also obtained promotions to the higher posts in the regular course. 5. There have been a number of writ petitions in this Court by persons belonging to different categories in the cadres of Health Assistants and Health Inspectors complaining against the principles laid down by G.O. MS. 603 of 1964 and various subsequent orders passed by the Government on the subject. Some of the writ petitions were not pressed in the light of subsequent orders; and in other cases, directions were issued to the Government to consider the representations of the persons concerned on the points raised by them. 603 of 1964 and various subsequent orders passed by the Government on the subject. Some of the writ petitions were not pressed in the light of subsequent orders; and in other cases, directions were issued to the Government to consider the representations of the persons concerned on the points raised by them. None ] of the questions raised by the parties has been decided by this Court in any of the above writ petitions. Pursuant to the directions issued by this Court, the Government considered the representations made by various categories of persons, and issued G.O. MS. 280/69/HD dated 3-10-1969 directing "that in the matter of further promotion from the post of Health Assistant Grade II to the post of Health Assistant Grade I effected after 1-4-1964, persons with Health Inspector's training or equivalent qualification in the combined gradation list of Health Assistant Grade II should be given preference, since they alone were duly qualified to hold the post of Health Assistants." Promotions already made were also directed to be reviewed. The above G.O. was modified by G.O. MS. 318/69/HD dated 17-11-1969 by directing that the said preference would be given in the case of promotions to higher cadres also. The Government invited objections to the above orders; and after considering the objections filed by various persons, it passed final orders as per G.O. MS. 46/71/HD dated 9-2-1971 confirming its decision contained in G. O. MS. 280 of 1969 as modified by G. O. MS. 318 of 1969. These writ petitions have been filed to quash G.O. MS. 280 dated 3-10-1969, G.O. MS. 318 dated 17-11-1969 and G.O. MS. 46 dated 9-2-1971, and to direct the State Government and the Director of Health Services to implement G.O. MS. 603 dated 20-8-1964, and not to review the promotions made pursuant to this Government Order. 6. Various contentions have been raised by the petitioners against the validity of the impugned orders; and long arguments have been also addressed before me by their counsel. Three points arise from those arguments. The first is that the said orders are violative of Art.16(1) of the Constitution. 6. Various contentions have been raised by the petitioners against the validity of the impugned orders; and long arguments have been also addressed before me by their counsel. Three points arise from those arguments. The first is that the said orders are violative of Art.16(1) of the Constitution. It was submitted on behalf of the petitioners that when the Malaria - Filaria Wing and the general wing of the Health Services Department were merged, the Malaria-Filaria staff was entitled to have their ranks determined in the combined grades according to their length of service in the respective grades, that the said right has been rightly conceded by the Government in G.O. MS. 603 of 1964, and that any preference given to the staff of the general wing would be violative of the said right and a denial of equality of opportunity in matters relating to employment. The second point is that the impugned orders have retrospectively affected the conditions of service of the petitioners, and that the Government has no such power. The third point is that the impugned orders are violative of R.27(c) and 28 of the Kerala State and Subordinate Services R.1958. On behalf of the State Government and the contesting respondents, it was submitted that the Malaria - Filaria staff was liable to be retrenched on the completion of the project for which that wing was constituted, that their absorption in the general wing was a concession, that they were not entitled to have seniority over any member of the general staff in a cadre into which they were absorbed. It was also contended that the Government is entitled to review its orders relating to the conditions of service of its employees, though it may affect those conditions retrospectively. I shall now examine these rival contentions. 7. The effect of the impugned Government Orders is very drastic. According to the decision contained therein, every person who came from the Malaria-Filaria Wing would be treated as junior to the juniormost hand among the general wing of the Health Services Department irrespective of the length of service or the salary drawn by the person belonging to the Malaria - Filaria Wing at the time of merger of the two wings. The person who came from the Malaria - Filaria Wing might have got one or more promotions, and he may be drawing about twice the salary of the juniormost person who was in the general wing. But all such promotions have to be reviewed; and the Malaria-Filaria person has to forfeit all that and find his place at the bottom of the ladder. The position can be illustrated with reference to the combined gradation list issued by the Government as per G.O. (P) 845/65/HLD dated 4-11-1965. Part IV of that list relates to Health Assistants Grade II. Items 48, 49, 51 to 54, and 56 to 58 are persons who belonged to the Malaria - Filaria Wing. They had not at the time of merger of that wing with the general wing, the Sanitary Inspector's Test or the Health Inspector's Certificate, though they have obtained that qualification subsequently. All these persons have now about 30 years' continuous service and 23 to 27 years' service in the post or grade of Health Assistant Grade II. They have also got one or two promotions to higher grades in the regular course. Items 1499 to 1503 in Part IV of the aforesaid list are persons who belonged to the general wing; and they have got only 7 to 8 years' continuous service in the post or grade of Health Assistant Grade II. Yet, by virtue of the fact that they had the Sanitary Inspector's Test at the time of preparing the above combined gradation list, items 48, 49, 51 to 54 and 56 to 58 will lose all the promotions and increments of salaries and take their place below items 1499 to 1503. The former can aspire for promotions only after the last person in the general wing is promoted, with the result, that most, if not all, of the Malaria - Filaria Wing persons will retire in the grade which they had at the time of merger of the two wings, after forfeiting the promotions or increments of salaries that they got in the regular course. This is a preposterous state of affairs. The impugned orders are clearly violative of the equality of opportunity in matters relating to employment, which is guaranteed by Art.16(1) of the Constitution. I am doubtful whether the Government intended this result. This is a preposterous state of affairs. The impugned orders are clearly violative of the equality of opportunity in matters relating to employment, which is guaranteed by Art.16(1) of the Constitution. I am doubtful whether the Government intended this result. It is stated that the decision which has brought about such consequences was taken in the light of the directions given by this Court. As already stated, this Court has not taken any decision on any of the questions raised before it. It has only left the matter for the Government's consideration; and I could not see anything in any of the judgments placed before me which contains even an observation influencing the Government to take any such decision. 8. Civil servants are entitled to certain constitutional protections, particularly those contained in Art.16 and 311 of the Constitution. Their conditions of service are also regulated by the several rules made by the Governor under the proviso to Art.309 of the Constitution. The Legislature of the State can also make laws in the matter. The State has got the executive power under Art.162 to make rules regulating the conditions of service of its employees. But these executive rules have to be subject to the constitutional protections, the statutory enactments, if any, and the rules made by the Governor. When once a person enters civil service, he becomes entitled to the constitutional protection as well as all other benefits available to him under law. If a person is appointed in a temporary establishment, his appointment would terminate with the cessation of that establishment. But that would not be the case, if the employees in a Department became superfluous. They have to be continued in service, if not in that department, in some other suitable posts. The Malaria-Filaria programme was admittedly one branch of the work of the Health Services Department. Its activities were considerably increased at one stage; and large number of persons were employed in that branch partly by transfer from the general wing and partly by direct recruitment. It was not a temporary establishment. It is still there. All that was done was to merge that branch with the general wing of the Department. The merger was affected, since the work of the Malaria - Filaria branch was considerably reduced and there was no scope to maintain a large staff employed in that branch. It was not a temporary establishment. It is still there. All that was done was to merge that branch with the general wing of the Department. The merger was affected, since the work of the Malaria - Filaria branch was considerably reduced and there was no scope to maintain a large staff employed in that branch. There is no case that the petitioners were recruited on a temporary basis. On the other hand, they were recruited in the regular manner in one branch of the Health Service Department. They are, therefore, entitled to protection of service like any other employees of that Department. 9. The next question for consideration is whether the petitioners can be rightly absorbed in the posts of Health Assistants and Health Inspector, since they did not have the special qualification prescribed for those posts, namely the Sanitary Inspector's Test or the Health Inspector's Certificate. This is a qualification prescribed by the Government by an administrative order. The Government has no case that it cannot modify that order, or exempt any particular class of persons from possessing that qualification. The Government has by G.O. MS. 262/61/H & L.D. dated 6-3-1961 exempted Health Assistants Grade II from possessing the said qualification in the matter of their promotion to Grade I. It is clear from G.O. MS. 603 of 1964 that the Government has exempted the personnel of the Malaria - Filaria Wing also from possessing the said qualification in the matter of their merger with the general wing; and without such exemption, they could not be posted in any of the cadres of Health Assistants or Health Inspectors. The Government has no case that it did not have power to grant that exemption. It was not also contended before me that the exemption granted to this personnel was illegal or unjust. It follows that the petitioners became rightly entitled to hold the posts which were assigned to them as per G.O. MS. 603 of 1964. Then the question is whether the terms and conditions of their service contained in the said order could be retrospectively altered to their disadvantage. A Division Bench of the Punjab and Haryana High Court had occasion to consider that question in Suresh Kumar v. Union of India AIR 1969 Punj. 257. 603 of 1964. Then the question is whether the terms and conditions of their service contained in the said order could be retrospectively altered to their disadvantage. A Division Bench of the Punjab and Haryana High Court had occasion to consider that question in Suresh Kumar v. Union of India AIR 1969 Punj. 257. One of the questions which arose in that case was whether the conditions of service granted to Government Servants by an administrative order can be altered with retrospective effect by a subsequent administrative order. Narula J. with whom the Chief Justice agreed, stated- "Whatever may be the position regarding statutory rules there appears to me to be absolutely no doubt that Government has no lawful authority to prejudicially affect the civil rights of a Government servant retrospectively by a mere executive fiat otherwise than by his consent unless the Government is authorised to do so by the express provision of some valid law. Rights which have already accrued to a Government servant and the benefits which he might already have enjoyed under or by virtue of a pre existing executive instruction or administrative direction cannot be taken away with retrospective effect by another executive instruction or a mere administrative direction." I respectfully agree with the above statement of law. That this is the correct legal position is also clear from the following statement appearing in the judgment of the Supreme Court in N. C. Singhal v. Director General AIR 1972 SC 628 . The Court said: - "We think that the appellant's conditions of service were governed by para 13 of Army Instruction No. 1/8 of 1954 and his previous full pay commissioned service should be taken in the matter of 'antedate' for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by a subsequent administrative (Army?) instruction which was given retrospective effect from 26th October, 1962." Obviously, the orders of the State Government which are impugned in these cases affect retrospectively the conditions of service granted to the employees of the Malaria - Filaria as per G.O. MS. 603 of 1964 when their services were integrated with the general wing. 10. I shall now consider the last contention. 603 of 1964 when their services were integrated with the general wing. 10. I shall now consider the last contention. Regulation.4(b) of the Kerala Public Service Commission (Consultation) Regulation.1957 provides, among other things, that it shall not be necessary for the Government to consult the Public Service Commission in making appointments in the case of posts mentioned in the Annexure to the said Regulations. Item 5 in the annexure is "appointment of personnel retrenched in one service to another service within two years of retrenchment, were the qualifications required are, in the opinion of Government, similar to those in the retrenched service". Para 4 of G.O. MS. 603 of 1964 invites the attention of Director of Health Services to Regulation.4(b) and item 5 in the annexure and directs him to follow the said provisions as guiding principles in appropriate cases. Item 5 has application only in the case of appointments of retrenched persons from one service to another service. The term "service" is defined in R.2(15) of the Kerala State and Subordinate Services Rules, 1958 as a group of persons classified by the State Government as a State or Subordinate service as the case may be. The various classes of services constituted by the Government are enumerated in Schedule I of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. In that schedule, we have the Kerala Health Service and the Kerala Health Subordinate Service. Filaria and Malaria Wing is not a service by itself; it is only a branch of the Health Services Department. Hence Regulation.4(b) and item 5 in the annexure to the Kerala Public Service Commission (Consultation) Regulations, as such, have no application in the matter of integration of the personnel of the Malaria - Filaria Wing with the general wing of the said Department. However, the aforesaid direction to the Director of Health Services contained in G.O. MS. 603 makes clear what the Government intended and what it did in the said matter. The G.O. makes it clear that they were exempted from the technical qualification necessary for appointment to the posts of Health Inspectors and Health Assistants, their past services were recognised, but not the promotions obtained by them in the Malaria - Filaria Wing, and they were appointed in those posts on a provisional basis on condition that they would be afforded opportunities for acquiring such qualification. It may be that, on the basis of the above order, they may not be entitled to promotion, unless they acquire the said qualification. But I have no doubt that their seniority on the basis of their length of service and their right for promotion on their acquiring the prescribed qualification were recognised and protected by the above G.O. These were not the result of any favour done to them. Under R.27(c) of the Kerala State and Subordinate Services Rules, they were entitled to have their seniority in the integrated service to be determined by the date of their first effective advice by the Public Service Commission for appointment. R.28(b)(ii) of the said Rules requires that the promotions shall be according to seniority subject to fitness for appointment; R.28(bb) provides, that in the case of promotions which require passing of an examination, they shall be made with reference to the conditions existing at the time of occurrence of the vacancies. It follows that the seniority of these persons are governed by R.27(c); and that by virtue of R.28(b)(ii) and 28(bb) of the above rules, they are entitled to promotions according to their seniority in the vacancies which arose after they acquired the prescribed qualification for the posts concerned. The impugned orders, therefore, violate the above statutory rules. 11. For the reasons stated above, I quash G.O. MS. 280 dated 3-10-1969, G.O. MS. 318 dated 17-11-1969 and G.O. MS. 46 dated 9-2-1971 and direct the State Government and the Director of Health Services to implement G.O. MS. 603 dated 20-8-1964 in the light of this decision. In the circumstances of the case, I make no order as to costs.