Sreeedharan v. Registrar — 1981 DIGILAW 221 (KER)

JUDGMENT Bhaskaran, J. 1. The petitioner entered service of the Tavanur Rural Institute, for short the Institute, in the year 1969 as L. D. Clerk in the pay scale of Rs. 230-385. S.59 of the Kerala Agricultural University Act, 1971 (the Act) provided for the taking over of the Institute by the Kerala Agricultural University (the University) subject to such terms and conditions as might be agreed upon by the Government, the University and the Institute, for its maintenance thereafter by the University as one of its constituent units subject to those conditions. On 5th August, 1975 the Government issued G.O. MS. No. 139/75/H. Edn., Higher Education (E) Department, a true copy of which is Ext. P-1. Para.7(iii) of Ext. P-1 Government Order reads as follows: - "The employees mentioned in the list appended will stand transferred to the University from the date of transfer of the Institute. They will form a separate unit of the University in respect of service conditions until such time as the integration of services shall be prescribed by the University". (emphasis supplied) The petitioner was one among those mentioned in the list appended to the Government Order, Ext. P-1. Subsequently the Government passed order G.O. Rt. No. 2293/75/H. Edn., Higher Education (E) Department, dated 10th December, 1975, a true copy of which is Ext. P-2, which provided inter alia that the land, buildings, equipments, farm and the staff allotted to the University shall stand transferred to it on 12th December, 1975. In its proceedings No. GA(1)22417/74(1), General Administration, dated 8th January, 1976, a true copy of which is Ext. P-3, the University had stated: "The take over of the Rural Institute, Tavanur by the Kerala Agricultural University was effected with effect from 12th December, 1975". It would appear that the employees of the Institute transferred to the University under Ext. P-2 had made certain representations on the proposed integration of services of the employees of the Institute with those of the employees of the University. Ext. P-4 is the copy of the communication No. GA(1) 34230/76 dated 1st June, 1977 under which the Registrar of the University informed the Special Officer, Institute of Agricultural Technology, Tavanur regarding the principles adopted by the University for the integration of services of the employees of the Institute with those of the University. In Ext. Ext. P-4 is the copy of the communication No. GA(1) 34230/76 dated 1st June, 1977 under which the Registrar of the University informed the Special Officer, Institute of Agricultural Technology, Tavanur regarding the principles adopted by the University for the integration of services of the employees of the Institute with those of the University. In Ext. P-4 it was slated inter alia that the University had then proposed only for the integration of the services of the staff of the Institute with the services of the staff of the University and that the request of the employees for higher grade, eligibility for promotions based on their length of service in the equated category, etc., were separate issues and such request could not be considered then. Ext. P-5 is the copy of the order issued by the University in its proceedings No. GA(1) 34230/76, General Administration, dated 7th June, 1977. Para.2 and 5 of Ext. P-5 are extracted below: "2. Even though the Rural Institute, Tavanur was taken over by the Kerala Agricultural University on 12th December, 1975, the integration of service of the Rural Institute staff with the Kerala Agricultural University service was not finalised due to certain administrative reasons. The Kerala Agricultural University has decided to effect the integration of the services of Rural Institute employees with the Kerala Agricultural University service with effect from 1st April, 1977 adopting certain principles for the fitment of the personnel belonging to the teaching, research and extension wings, transferred to the Kerala Agricultural University at its formation in appropriate categories of posts of the University. The fitment of the ministerial, technical and non technical posts was proposed, taking into consideration of the duties and functions discharged by them." 5. In the circumstances, it is finally ordered that the following employees of the Rural Institute, Tavanur will be fitted to the posts of Kerala Agricultural University service noted against the name of each one of them with effect from 1st April, 1977 * * * * Administrative staff. * * * * 7. Sri K. P. Sreedharan, L.D. Clerk on Rs. 230-385, Clerk. * * * * Though the employees of the Institute demanded that the benefit under Ext. P-6 Government Order G.O. MS. No. 347/77/Ad. * * * * 7. Sri K. P. Sreedharan, L.D. Clerk on Rs. 230-385, Clerk. * * * * Though the employees of the Institute demanded that the benefit under Ext. P-6 Government Order G.O. MS. No. 347/77/Ad. dated 30th November, 1977 under which the Government ordered parity of pay scale, etc., between the employees of the Kerala University and those of the (Kerala Agricultural) University with effect from 1st January, 1976 might be extended to them also, the University by its order issued in its proceedings No. GA/69230/A3/77 dated 27th June, 1978, a true copy of which is Ext. P-7, granted them those benefits only from 1st April, 1977 on the ground that their integration into the service of the University took place only from that date. 2. The writ petition is for the issue of a writ of certiorari quashing Exts. P-5 and P-7 to the extent they are against the employees of the erstwhile Institute as compared with the rest of the employees of the University, and for the issue of a writ of mandamus to the extent it denies to the petitioner the benefit of integration from 12th December, 1975, the date of transfer of the Institute to the University, and parity of pay scale with effect from 1st January, 1976 as ordered in Ext. P-6. 3. Sri M. M. Cherian, the counsel for the petitioner, submitted that the transfer of the selected employees of the Institute to the University having taken effect in terms of Exts. P-2 and P-3, there was no justification for not extending the benefit to the petitioner from 12th December, 1975 and 1st January, 1976 respectively. According to him the discriminatory treatments meted out to the petitioner and persons similarly placed, in and by Exts. P-5 and P-7 are violative of the fundamental rights for equal treatment guaranteed under Art.14 and 16 of the constitution. 4. According to him the discriminatory treatments meted out to the petitioner and persons similarly placed, in and by Exts. P-5 and P-7 are violative of the fundamental rights for equal treatment guaranteed under Art.14 and 16 of the constitution. 4. Sri K. Sukumaran, the counsel for the University, on the other hand, sought to highlight the position that under S.59 of the Act the option to take over the Institute was left with the University, that such taking over was subject to such terms and conditions as might be agreed upon by the Government, the University and the Institute, and that one of the conditions insisted upon by the University and agreed upon by the other two parties was that all the employees of the Institute mentioned in the list appended to Ext. P-1 Government order and who stood transferred to the University from the date of transfer of the Institute would form a separate unit of the University in respect of service conditions until such time as the principles of integration of services were prescribed by the University. He also relied on Para.7(vi) of Ext. P-1 order whereunder it was stated that the employees transferred to the University would be governed by the service rules then existing in the Institute till such time as might be decided by the University. He also took care to point out that as per Para.7(xii) of Ext. P-1 order promotions, if any, made in the Institute on or after 1st April, 1974 to the posts transferred to the University had to be deemed to be purely provisional/and subject to review by the University; and any decision that the University might take in that regard would be final. 5. It is well settled that if persons drawn from different sources are integrated into one class in service and they have the same designation, the same pay scale and the same functions, and their posts are interchangable, there could be no discrimination among them in the matter of service conditions after the integration. 5. It is well settled that if persons drawn from different sources are integrated into one class in service and they have the same designation, the same pay scale and the same functions, and their posts are interchangable, there could be no discrimination among them in the matter of service conditions after the integration. In this case the point in issue really is not whether, after the integration, the personnel who came from one source could be treated differently from the rest, but whether, for the purpose of giving equal treatment on functional basis, the integration should be deemed to have taken place on and from the date of transfer of the institute to the University though the principles of integration were evolved and orders passed in that behalf on a subsequent date. We have already noticed that by Exts. P-2 and P-3 the transfer of the employees from the Institute to the University had taken effect on and from 12th December, 1975. The sole question then is whether it is open to the University to treat the employees of the erstwhile Institute differently from the rest of the employees of the University from 12th December, 1975 to 1st April, 1977 which is stated to be the date of integration. The counsel on both sides have placed reliance on different passages of the decision of the Supreme Court in Col. A. S. Iyer's case ( AIR 1980 SC 452 ). Sri Cherian sought support mainly from the following passage occurring in Para.45 at page 465 of the report: "Let us eye the issue from the egalitarian angle of Art.14 and 16. It is trite law that equals shall be treated as equals and, in its application to public services, this simply means that once several persons have become members of one service they stand as equals and cannot, thereafter, be invidiously differentiated for purposes of salary seniority, promotion or otherwise based on the source of recruitment or other adventitious factor. Birthmarks of public servants are obliterated on entry in to a common pool and our country does not believe in official casteism or blue blood as assuring preferential treatment in the future career. The basic assumption for the application of his principle is that the various members or groups of recruits have fused into or integrated as one common service. Birthmarks of public servants are obliterated on entry in to a common pool and our country does not believe in official casteism or blue blood as assuring preferential treatment in the future career. The basic assumption for the application of his principle is that the various members or groups of recruits have fused into or integrated as one common service. Merely because the sources of recruitment are different, there cannot be apartheidisation within the common service.": Sri Sukumaran's reliance, on the other hand, is on the following passages appearing in Para.47 at page 465 and Para.52 at page 467 of the report:- "47. The learned Attorney General also adopted the precedentally sanctified route of escape from the magnetic field of Art.14 and 16, that if the two sources of entry never really flowed into a homogenised sangam but remained the Ganga and Jamuna, no question of equality arose. A common pool where the plurality meets is a necessary postulate for the application of the equalist mandate. Here the Army engineers, it is apparent from the rules, essentially continue to be army men but wear pro tempore Survey apparel, to be doffed any time specified in the rules themselves. Resultantly, the military and civilian members remain immiscible layers save for some purposes. The condition of integration of men from the divergent sources being absent, rulings have held Art.16 is out of the way. Once it is agreed or found that at the entrance point the army engineers are justly given credit for the commissioned service which they carry with them, there is no further discrimination while in service on the scores that they come from the corps of Engineer Officers. All that happen thereafter is merely a manifestation of initial advantage of credit for commissioned service. For this reason, we negative the case of discrimination." "52. Let us examine the facts briefly to see whether the fundamentals of constitutional equality are followed in the service scheme. The army engineers remain in 'uniform' as it were but wear a survey of India overcoat. They do not merge or fuse in to a single integrated service with the civilian recruits but remain as an immiscible layer of the Class I service, the other layer being the civilians. The two wings remain close but separate, not one homogenised family, as the various rules eloquently proclaim." 6. They do not merge or fuse in to a single integrated service with the civilian recruits but remain as an immiscible layer of the Class I service, the other layer being the civilians. The two wings remain close but separate, not one homogenised family, as the various rules eloquently proclaim." 6. The decisions of the Supreme Court are to be read and understood in the context in which they have been rendered: otherwise one runs the risk of applying the ratio of the decision to cases, the facts of which do not warrant the application of that principle. The substantial issue involved in Col. A. S. Iyer's case ( AIR 1980 SC 452 ) decided by the Supreme Court is quite distinct from the issue that falls for consideration in the present case. What the Supreme Court was called upon to decide was, whether it was basically inequitable to allow military engineers credit for commissioned service and protection of higher salarier already earned at the time of their joining the Survey of India, and whether that would amount to discrimination or favoured treatment vis-a-vis the civilians. From the facts, as stated in Para.44 and 53 of the said decision, it could be found that no violation of the principles of equal treatment to equals was involved in the case. The functional compulsions of the Survey of India require army engineers to be inducted, say half its Class I strength. These Engineer Officers have to possess years of experience. They cannot be attracted into the survey except by assuring them what they were enjoying in their existing service, i.e., credit for the years under commission in reckoning seniority and fitment of their salary at a point in the scale of Class I officers, so that, by way of personal pay or otherwise, a cut may be obviated. This is not discrimination or favoured treatment, but justice to those whom, of necessity, the Survey of India wanted. This is not discrimination or favoured treatment, but justice to those whom, of necessity, the Survey of India wanted. "To equate them with unequal civilian freshers is precisely the procrustean exercise which is unconstitutional equality anathematised by Art.14." It has also to be noticed that notwithstanding the army engineers having left the crops of engineers and entered service of the Survey of India, they continue to wear uniforms, they get notional promotions in the army when they earn corresponding promotions in the Survey of India; they secure army promotions only if they pass the requisite army tests ab extra; they can be recalled by the army and, for a certain period, they themselves may opt back to the army; they continue to be broadly under the control of Commander-in-Chief; when inefficiency is noticed, they can be called back to the army for being dealt with appropriately; they have to undergo the regular periodical drills in the army; their disciplinary control is not divested from the Army Chiefs; "there are many other such details, the cumulative impact of which is that they have two masters, as it were; they are in two Services, as it were, they are under two parents - natural and adopted; this is unique pattern where the Army members remain with one foot in the Army and the other in the Survey of India; a conspectus of the facts and circumstances governing the service convinces us that there is no total integration of the Army personal into the Survey Service. They are in it and yet out of it. This is what we may call a sui generis service and indubitably it can be asserted that they have not fully fused into a common pool. Absent such complete integration, Art.14 or 16 cannot be invoked". The difference between the point in issue in Col. A. S. Iyer's case ( AIR 1980 SC 452 ) decided by the Supreme Court and that in the present case is too obvious to require any detailed discussion. The position is not comparable at all. In one case the two wings, the military and the civilian, in the inimitable words of Krishna Iyer, J., remain as "two immiscible layers, the two wings remaining close but separate". The position is not comparable at all. In one case the two wings, the military and the civilian, in the inimitable words of Krishna Iyer, J., remain as "two immiscible layers, the two wings remaining close but separate". In the other case what was envisaged, and what was actually brought about was the fusion of the two wings into one to remain integrated, shedding their separate identity completely. I have dealt with the facts of Col. A. S. Iyer's case ( AIR 1980 SC 452 ) fairly in detail to point out that whatever is said on the facts of that case in Para.47 and 52 relied on by Sri Sukumaran is not applicable to the present case, the characteristic of which is complete integration. 7. It has not been possible for me to discern a case that the petitioner, between the date of transfer (12th December, 1975) and the assigned date of integration (1st April, 1977) was doing work or shouldering functional responsibilities different from what was expected of him after the date of integration. Then what is the justification for treating him on a different footing, to his detriment, from the rest? Does it not offend the equality principle enshrined in Art.14 and 16 of the Constitution? Apparently it does, then the question is whether the apparent unequal treatment of two sets of persons deserving equal treatment on the basis of functional responsibilities and duties could or should be approved making use of the segregation clauses contained in sub paragraphs (iii), (vi) and (xii) of Para.7 of Ext. P-1 Government Order? In my view it could not be. For one thing, if the provisions contained in those clauses mean such unequal treatments, they are unconstitutional, being opposed to Art.14 and 16 of the Constitution; for another thing, these provisions understood in the proper context and backdrop, have to be construed to mean as a transitory provision for evolving the principles of integration which once settled has to be given effect from the date of the transfer. The delay in prescribing the principles of integration was due to no fault of the transferred employees; on the other hand, the real reason was, as stated in Para.2 of Ext. The delay in prescribing the principles of integration was due to no fault of the transferred employees; on the other hand, the real reason was, as stated in Para.2 of Ext. P-5 proceedings of the University dated 27th June, 1977, "the integration of service of the Rural Institute Staff with the Kerala Agricultural University service was not finalised due to certain administrative reasons". 8. The position that emerges from the foregoing discussion is that the employees of the Institute transferred to the University, and actually got integrated with the staff of the University, are entitled to the protection under Art.14 and 16 of the Constitution to ensure that for the benefits of service they are treated as equals with their counterparts in the University from the date of transfer disregarding the fact in Ext. P-1 Government order there was provision to keep them as a separate block till the principles of integration were prescribed; and for that reason Exts. P-5 and P-7 to the extent they give different treatment to the transferred employees like the petitioner till 1st April, 1977 shall stand quashed. The writ petition is allowed as above. There will be no order as to costs.