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1973 DIGILAW 268 (KAR)

K. v. BALLURGI VS STATE OF MYSORE

1973-09-21

K.J.SHETTY

body1973
( 1 ) K. V. Ballurgi, the petitioner, was an employee of the District Local board, Belgaum. Consequent on the abolition of the Board, he was absorbed as a First Division Clerk in the State Accounts Department of the state of Mysore. He challenges the said absorption in this petition under article 226 of the Constitution. ( 2 ) A few more facts are necessary to understand the question involved in the case. The petitioner was originally a clerk in the District Local Board, belgaum. He joined service on 23-4-1948. On 15-8-1957, he was promoted as Head Clerk and Accountant in the pay scale of Rs. 160-250 which was later revised to Rs. 180-300. Consequent on the coming into force of the mysore Village Panchayats and Local Boards Act, 1959, all the District boards in the State were abolished from 1-11-1959. A provision was made in the Act to absorb the entire staff of the District Boards either in Government service or in the service of Taluk Boards. Accordingly the petitioner was absorbed in Government service as a First Division Clerk. He joined the State Accounts Department on 14-11-1961. According to the order of absorption, he was allowed to retain his scale of pay of Rs. 180- 300, though the post to which he was absorbed, carried a lesser pay scale. ( 3 ) THE order directs that he should pass the SAS. Examination within a period of three years from the date of his joining duty in the State accounts Department, failing which his increments would be liable to be withheld. In 1969, the Mysore District Boards and District Local Boards employees (Absorption in Mysore Government Service) Rules, 1959, were made by the Governor under the proviso to Art. 309 of the Constitution. By the said Rules, the absorption of the petitioner as a First Division Clerk in the State Accounts Department was regularised. He was given the benefit of the entire service in the District Local Board for the purpose of determining, his seniority. ( 4 ) S. B. Patil, Respondent 3 was also a similar employee like the petitioner under the defunct District Board. He was initially absorbed as a block Accountant; but by the order dt. 10-9-1965, the Government approved his absorption as Deputy Tahsildar in the Revenue Department in the pay scale of Rs. 220-320. ( 4 ) S. B. Patil, Respondent 3 was also a similar employee like the petitioner under the defunct District Board. He was initially absorbed as a block Accountant; but by the order dt. 10-9-1965, the Government approved his absorption as Deputy Tahsildar in the Revenue Department in the pay scale of Rs. 220-320. The post held by the petitioner in the District Board was that of a Head clerk and Accountant. It was a promotional post from the cadre of Senior clerks of the erstwhile State of Bombay or the First Division Clerka of the new State of Mysore. But he was abserbed as a First Division Clerk in the Service of the Government. The question is whether it is correct and legal. ( 5 ) THE decision on the question turns on the meaning to be given to the word 'absorbed' occurring in clause (b) of the Second Proviso to S. 242 (1) of the Act. The said clause reads : (b) Every officer or servant in the employ of a District Board immediately before the date of commencement of this Act shall be absorbed in the service of a Taluk Board or of the Government, and shall until other provision is made receive 'the salaries and allowances and be subject to the conditions of service to which he was entitled or subject on such date. Mr. Puttaswamy, leagued Government Advocate urged that the only right of the petitioner under the above provision was to have him absorbed in Government service or in the service of a Taluk Board, and he has no right to claim that he should be absorbed in a similar or equivalent post. ( 6 ) THE scope and meaning of the word absorbed' came up for consideration in Hasabnis v. State of Mysore (1967) 1 Mys. L. J. 118. , wherein Somnath Iyer J. speaking for the Bench, said at page 120 of the report as follows : we think that we should not give the word 'absorbed' occurring in the clause any sharp definition. We should give that word a meaning which promotes the legislative intent and fits into the context. The purpose of this clause is to continue by service an employee under the abolished District Board, so that that employee may have an uninterrupted employment either in the Taluk Board or under government. We should give that word a meaning which promotes the legislative intent and fits into the context. The purpose of this clause is to continue by service an employee under the abolished District Board, so that that employee may have an uninterrupted employment either in the Taluk Board or under government. The restricted power created in Goverment by that clause is the power to determine whether such absorption should be made by the Taluk Board or by Government. The consequence emanating from such absorption is continuity in service without a break. ( 7 ) THE abolished District Local Board was established and functioning under the Bombay Local Boards Act, 1923, and its place was taken by the Taluk Board which now functions under the repealing Act. The clear legislative intent Which manifests itself in the relevant provisions of the repealing Act to which we have referred was to bring about an assimilation between service under the District Local Board and service under the Taluk Board or under Government as the case may be, by the process of absorption. By such assimilation there is a coalescence and fusion of the two services, and such union makes the service in the absorbing unit a continuation of the service in the other. " the learned Judge further held that the word 'absorption' should receive the same meaning as amalgamation. He also held that the service rendered in the District Board became united with the service under the Taluk board or under Government and that the absorbed officials have a right to count their past service for the purpoe of seniority in the cadre to which they came to be absorbed. ( 8 ) THERE is now an accepted rule stating that the absorbed officials get continuity of service and also seniority from the commencement of service in the posts held by them before their absorption. It is a well established principle that the service rendered by an official in a lower cadre cannot be reckoned for the purpose of seniority in any higher cadre. That being the position, unless the post held by the petitioner before his absorption is equivalent to the post to which he is absorbed, I fail to understand how he could count his past service for determination of his seniority in the absorbed cadre or post. ( 9 ) IF the contention of Mr. That being the position, unless the post held by the petitioner before his absorption is equivalent to the post to which he is absorbed, I fail to understand how he could count his past service for determination of his seniority in the absorbed cadre or post. ( 9 ) IF the contention of Mr. Puttaswamy that the right of the petitioner is only to have him absorbed in Government service and that he has no right, to be abosrbed in an equivalent post is accepted, it would lead to anomalous results A Head Clerk under the former District Board could be absorbed as a Second Division clerk, a Chief Executive Officer could be absorbed as a First Division clerk, and a Medical Officer could be absorbed as a Compounded. Nothing so bad would have been intended by the legislature. The Court should always give a meaning to the words which promotes the legislative intent. Clause (b) of the second proviso to 8. 242 (1) states that the officer or servant in the employment of the District Board shall be absorbed in the service of a Taluk Board or of Government. The change of service was brought about not at the option of any official. That is why the Legislature made the provision that those officials should be absorbed either in government service or in the service of Taluk Boards. The consequences emanating from such absorption include continuity of service not only for purposes of leave and pension, but also for purposes of seniority. It is therefore necessary that the petitioner should be absorbed in a similar or equivalent post. ( 10 ) IT is not disputed that the First Division Clerk's post is lower in grade than the post of a Head Clerk and Accountant which the petitioner held under the defunct District Board. In my judgment, therefore, the petitioer who was a Head Clerk and Accountant, cannot be absorbed in a lower cadre like the First Division Clerk. In the result, I allow the Writ Petition, quash the petitioner's absorption as First Division Clerk as per rules (Ex. F), with a direction to respondent 1, to absorb the petitioner in Government service in a post equivalent to the one held by him in the defunct District Board. The petitioner is also entitled to his costs. Advocate's fee Rs. 100. 00. --- *** --- .