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1981 DIGILAW 3 (HP)

AMARI RAM v. UNION OF INDIA

1981-01-08

H.S.THAKUR, V.D.MISRA

body1981
JUDGMENT H. S. Thakur, J,—Since in the above three writ petitions common question of law and facts are involved, the same can conveniently be disposed of by a common judgment. It is however, appropriate to narrate in brief the relevant facts, in each writ petition, separately. 2. The facts in C. W. P. No. 87 of 1972 be stated. The petitioners were employees of the erstwhile Electricity Board of the composite State of Punjab and were serving as Upper Division Clerks in the aforesaid Board, till it came to be dissolved by virtue of the provisions of the Punjab State Reorganisation Act, with effect from 2-5-1967. The petitioners were thereafter allocated to Himachal Pradesh. According to the petitioners their terms and conditions of service were governed by the rules known as "Punjab Public Works Department Electricity Branch Provincial Service Class III (Subordinate Posts) Rules, 1952", which were mutatis mutandis applied by the Punjab State Electricity Board. A copy of the rules is annexed as Annexure PA to the writ petition. As a result of the allocation of the services of the petitioner is to Himachal Pradesh, seniority of the petitioners was to be fixed in the integrated service of the Multi-purpose Project and Power Department (MPP and Power) of Himachal Pradesh, since there was no corresponding State Electricity Board in Himachal Pradesh. It is contended that on account of the provisions of the Punjab Reorganisation Act, the Central Government had issued a letter dated 14-2-1967 (Annexure PC) whereby the formula of equation of posts as also fixation of seniority was laid down by the Central Government. It is contended that the Central Government had laid down the following principles for the determination of the equivalent posts :— (a) Nature and duties of a post, (b) Responsibilities and powers exercised by the officer holding the post, the extent or territorial or other charge held or responsibilities discharged. (c) Minimum qualifications, if any prescribed for recruitment to the post, and (d) Salary of the post. 3. It is pointed out that since the Dearness Allowance in Punjab was not merged with the initial pay, the pre-revised scale was the determining factor co find out an equivalent post. By virtue of Annexure PE a tentative equation was inculcated amongst the employees and representations were called for from them. 3. It is pointed out that since the Dearness Allowance in Punjab was not merged with the initial pay, the pre-revised scale was the determining factor co find out an equivalent post. By virtue of Annexure PE a tentative equation was inculcated amongst the employees and representations were called for from them. In the said list of equation, the Upper Division Clerks were equated with the Accounts Clerks. The petitioners represented against the same and contended that they should have been equated with the Upper Division Clerks of Himachal Pradesh Mr P and Power Department in accordance with the formula laid down by the Central Government. The representation (Annexure PF) was made. Thereafter another provisional equation was circulated as contained in Annexure PG wherein the Upper Division Clerks were divided into two parts, that is, Upper Division Clerks (Head Office cadre) and Upper Division Clerks (combined Circle cadre). The formers were equated with the Central scale Upper Division Clerks and the latter were enabled placed below Circle Assistants/Accounts Clerks MPP and Power Department. According to the petitioners even this equation was not proper in accordance with the principles laid down by the Central Government, referred to above. This equation was, however, held to be final in view of the decision of the Advisory Committee set up under Section 62 of the Punjab Reorganisation Act. The petitioners have contended that this final equation is riot proper and is illegal and discriminatory. It is further contended that the final equation has been made by the Advisory Committee and representations were rejected by the said Committee and the Central Government did not apply its mind to the case. It is also contended that the equation is in direct conflict with the principles laid down by the Central Government. »t is also pointed out that the petitioners were not afforded an opportunity to show cause when the equations were made to their disadvantage. It is contended that there are no orders on the record that the representations made by the petitioners were rejected by the Central Government or the seniority list or the equations made have been approved by the Central Government. In the writ petition the petitioners have elaborated the respective duties and functions performed by the petitioners in the Punjab State Electricity Board and by their counter parts in the MPP and Power Department, in Himachal Pradesh, to justify their claim. 4. In the writ petition the petitioners have elaborated the respective duties and functions performed by the petitioners in the Punjab State Electricity Board and by their counter parts in the MPP and Power Department, in Himachal Pradesh, to justify their claim. 4. Returns have been filed on behalf of respondent No. 3, Himachal Pradesh State Electricity Board, as also on behalf of private respondents 4 to 67 and respondent No 1. In the return filed on behalf or respondent No. 3, certain preliminary objections have been raised. It is contended that the orders of equation made by the Central Government in exercise of the powers under the Punjab Reorganisation Act, 1966 after integration of the services on reorganisation of the States, are passed in its administrative capacity by the Central Government and accordingly the orders equating the posts are not justiciable before this Court. It is also contended that the Himachal Pradesh State Electricity Board (the Board in short) is a body corporate incorporated under Section 5 of the Electricity Supply Act, 1948, by the Himachal Pradesh Government. The petitioners were the employees of the MPP and Power Department and their services were transferred to the Board after their services were determined by the MPP and Power Department. The Board offered equivalent posts to the petitioners and after accepting the said terms and conditions the petitioners joined the Board and became the employees of the Board with effect from 1-1-1972. Accordingly, the services of the petitioners in the Board are based on fresh contract of service and have no locus standi to seek the relief as claimed. It is also pointed out that no rights of the petitioners have been infringed. On merits it is admitted that the petitioners were working as temporary Upper Division Clerks (Circle cadre) in the Electricity Board in the erstwhile composite State of Punjab immediately before the dissolution of the said Board on 2-5-1967. The petitioners wife allocated to Himachal Pradesh after 2-5-1967. It is also averred that on 2-5-196/(the date of integration) two scales (Central and Punjab scales) were prevalent in the erstwhile MPP and Power Department of Himachal Pradesh to which the petitioners were allocated. The Central scales were applicable in the office of the Chief Engineer MPP and Power, whereas the Punjab scales were applicable in Circle and Divisional offices. It is also averred that on 2-5-196/(the date of integration) two scales (Central and Punjab scales) were prevalent in the erstwhile MPP and Power Department of Himachal Pradesh to which the petitioners were allocated. The Central scales were applicable in the office of the Chief Engineer MPP and Power, whereas the Punjab scales were applicable in Circle and Divisional offices. It is clarified that a tentative equation was made in accordance with the directions of the Central Government. After the representations were made by the employees allocated from Punjab and those serving in Himachal Pradesh, the equation was reviewed in accordance with the decision of the Central Government. The entire position has been elaborated in the return to justify the equation of posts. Ultimately, it is contended that the equation has been made in accordance with the principles laid down by the Central Government and there has been no violation of any instructions. It is also stated that the Advisory Committee had not arrogated to itself the functions of Central Government and the representations had been correctly rejected by the authorities. 5. The respondents 4 to 67 in their return have also controverted the claim of the petitioners. It is not necessary to reproduce |the contents of the return in extenso this court would not go into the detailed discussion of the disputed questions of fact. The return affidavit filed on behalf of respondent No. 1 is very material and may clinch the entire issue in controversy. In the reply affidavit it has been specifically stated that the equation of the posts of the petitioners was decided by the answering respondent on the basis of the recommendations of the Punjab Reorganisation (Himachal Pradesh) Advisory Committee which took into consideration the guide lines laid down in the letter No 22/5/&7SR (F) dated 14-2-1967 of Shri A D. Pande, Joint Secretary to the Government of India, Ministry of Home Affairs, Annexure PC to the writ petition. It is also asserted that the answering respondent decided the matter after affording opportunity to the petitioners and other employees to represent against the provisional equation and after considering the representations and on the recommendations of the Advisory Committee constituted by the Central Government under Section 82 of the Punjab Reorganisation Act. It is also asserted that the answering respondent decided the matter after affording opportunity to the petitioners and other employees to represent against the provisional equation and after considering the representations and on the recommendations of the Advisory Committee constituted by the Central Government under Section 82 of the Punjab Reorganisation Act. It is further pointed out that the final joint integrated seniority list has been duly approved by the replying respondent and before granting approval the Central Government had duly considered the representations made by the petitioners against the provisional joint integrated seniority list and it is only after the receipt of the recommendations of the Advisory Committee that the answering respondent decided to place the petitioners unblock below the class cadre existing in the MPP and Power Department. It is averred that the joint integrated seniority list is not justiciable. It is also contended that the writ petition is otherwise also not tenable as the petitioners are not the employees of the MPP and Power Department consequent to its closure and abolition of the posts and they cannot seek the determination of the seniority against non-existing posts. It is pointed out that the Advisory Committee was competent to recommend in the matter of equation of posts and determination of seniority to the replying respondent. The replying respondent has also adopted the reply filed on behalf of the Board (respondent No. 3) on other facts. 6. In C. W. P. No. 115 of 1972 the petitioners, like the petitioners in C. W. P. No. 87 of 1972, were also serving as Upper Division Clerks in the erstwhile Electricity Board of composite State of Punjab who were also allocated to Himachal Pradesh after the dissolution of the said Board. Their contentions and claim in the writ petition are the same as in C. W. P. No. 87 of 1972. Similar reply to the writ petition has been filed on behalf of respondent No. 3. On behalf of respondent No. 1 (Union of India), the reply affidavit as filed in the above C. W. P has been prayed to be adopted. As such, it is not necessary to narrate in details the respective contentions of the parties, over again. 7. Similar reply to the writ petition has been filed on behalf of respondent No. 3. On behalf of respondent No. 1 (Union of India), the reply affidavit as filed in the above C. W. P has been prayed to be adopted. As such, it is not necessary to narrate in details the respective contentions of the parties, over again. 7. In C. W. P. No. 139 of 1972 the petitioners were also the employees of the erstwhile Electricity Board of composite State of Punjab and were serving as Circle Assistants/Assistant Revenue Accountants in the said Board till it came to be dissolved by virtue of the provisions of the Punjab Reorganisation Act with effect from 2-5-1967. According to the petitioners the posts of Circle Assistants and Assistant Revenue Accountants were equivalent and were inter-changeable. The petitioners were allocated to Himachal Pradesh after the dissolution of the aforesaid Electricity Board. The claim of the petitioners in the writ petition is that their posts be equated with the posts of Head Assistants of the erstwhile MPP and Power Department of Himachal Pradesh and the seniority list Annexure PO as also the equation list Annexure PJ be quashed. The reply filed on behalf of the respondent No. 3 is almost identical as in the aforesaid C. W. P. No. 87 and 115 of 1972- The respondent No. 1 (Union of India) has also ^adopted the reply as filed in C. W. P. No. 8/ of 1972. As such, it is not necessary to reflect the respective contentions of the parties, over again. 8. It is contended by Shri Chhabil Dass, the learned counsel in C. W. P. Nos. 87 and 139 of 1972, that the posts of the petitioners have not been equated in consonance with the principles laid down by the Central Government as contained in the letter of Shri Pande referred to above. It is specifically pointed out by the learned counsel that the direction of t i e Central Government as contained in Annexure P N was not implemented. It is appropriate to reproduce the said letter :— "It is observed from Appendix T Provisional Joint Seniority list and the views of the Hf Govt. It is specifically pointed out by the learned counsel that the direction of t i e Central Government as contained in Annexure P N was not implemented. It is appropriate to reproduce the said letter :— "It is observed from Appendix T Provisional Joint Seniority list and the views of the Hf Govt. on the representations from Shri Amri Ram and others that although the incoming posts of Upper Division Clerks (circle cadre) and Circle Assistants of Punjab State Electricity Board have been equated with the posts of Accounts Clerks/Circle Assistants of old H. P., they have been placed below Accounts Clerks of old H P., enbloc in the integrated seniority list. When two groups of posts are proposed to be equated with each other, it will not be correct to place one group below another enbloc. Moreover, the equation does not seem to be appropriate because the post of U. D. C. is stated to be superior to the post of Accounts Clerk as admitted by H. P. Govt. vide their comments on the representations of Shri Amar Nath Assistant MPP and Power Deptt. received under Ministry of Home Affairs letter No. F. 10/3/71-HMT dated 11-2-1971. The fact-that the next promotion post for Accounts Clerk in MPP and Power Deptt. of old H. P is that of U. D. C. also militates against the equation. In the light of the above as well as other relevant factors the H.P. Govt. may be requested to review the equation and send revised recommendation so far as the joint seniority list of Circle Assistant/Account Clerks/Upper Division Clerks (Circle Cadre) is concerned." It is further contended that Annexure p L, a letter dated 29-8 1969 from the Government of India, was also not brought to the notice of the Advisory Committee. It is desirable to reproduce the said letter as well :— "I am directed to refer to your letter No. 2-60/67 Integ. dated the 17th April, 1968, on the above subject and to convey the sanction of the President to the following service conditions being made applicable to the staff of the erstwhile Punjab State Electricity Board, reallocated to the Govt. dated the 17th April, 1968, on the above subject and to convey the sanction of the President to the following service conditions being made applicable to the staff of the erstwhile Punjab State Electricity Board, reallocated to the Govt. of Himachal Pradesh as a result of re-organisation of the erstwhile Punjab State, namely : (1) Counting of previous service under the erstwhile Punjab State Electricity Board towards seniority pension and pay.— All such employees who, as a result of dissolution of the erstwhile Punjab State Electricity Board, have been allocated to the Himachal Pradesh Administration, may be treated as Govt. Servants with effect from 2-5-1967 for all intents and purposes and their previous service rendered prior to 2-5-1967 may be counted towards fixation of their seniority ; pay and pension under the Central Government Rules subject to the condition that: (i) In respect of such of the employees as were subscribing towards Contributory Provident Fund, only their own subscription with interest thereon will be credited to their General Provident Fund accounts, the Boards contribution with interest thereon being paid to the Himachal Pradesh Government ; and (ii) the employees of the composite Punjab State Electricity Board whose services have been absorbed by the Himachal Pradesh Government, will not be entitled to any retirement benefits from the dissolved Board for the service rendered by them with the Board. (2) Carry forward of leave.—The service rendered by the staff under the Punjab State Electricity Board which was an autonomous organisation prior to its dissolution, will not be taken into account for purposes of carry forward of leave on their absorption under the Himachal Pradesh Government and all such leave standing to their credit shall automatically lapse on the date of dissolution of the Board and no benefits thereof will be given to such employees in respect of such outstanding leave. However, these employees will have benefit of leave in respect of the service rendered by them under the Himachal Pradesh Government from 2-5-1967 onwards only. This letter issues with the concurrence of the Ministry of Finance (Deptt. of Expenditure) vide their U. O. No. 2S24-I&P/69 dated 5-6-69." On the basis of the aforesaid communications it is contended that the cases of the petitioners were not properly considered, while determining seniority as also the equation of posts. It is further contended that the Board is bound by the decision of the Central Government. of Expenditure) vide their U. O. No. 2S24-I&P/69 dated 5-6-69." On the basis of the aforesaid communications it is contended that the cases of the petitioners were not properly considered, while determining seniority as also the equation of posts. It is further contended that the Board is bound by the decision of the Central Government. Almost similar arguments have been advanced on behalf of Shri Nag, the learned counsel for the petitioners in C. W. P. No. 115 of 1972. In fact as a whole the arguments as advanced by Shri Chhabil Dass have been adopted in this petition as well. Our attention has been drawn to the decisions in Union of India v. P. K. Roy and others [A.I.R. 1968 S. C. 850] and in Union of India and others v. Madan Lal [1971 (2) SLR 1], In P. K. Roys case (supra) while interpreting Sections 115 and 117 of the States Reorganisation Act, 1956, the Supreme Court observed that the said sections did not prohibit the Central Government in any way from taking the aid and assistance of the State Government in the matter of affecting the integration of the services. It is further observed that as long as the act of ultimate integration is done, with the sanction and approval of the Central Government and as long as the Central Government exercises general control over the activities of the State Go/eminent in the matter, it cannot be held that there has been any violation of the principles of "delegates non protest delegare". Looking to the facts of that case it is further observed that on facts and the special circumstances of the case that the respondents were entitled to an opportunity to make a representation with regard to the points in question before the final gradation list was published and as no such opportunity was furnished to the respondents with regard to those matters, the combined final gradation list was held to be ultra vires and illegal. In Madan Lals case (supra) a Division Bench of Punjab and Haryana High Court observed that even in administrative order which involves civil consequences rules of natural justice should be followed and opportunity be given to persons adversely affected thereby 9. In Madan Lals case (supra) a Division Bench of Punjab and Haryana High Court observed that even in administrative order which involves civil consequences rules of natural justice should be followed and opportunity be given to persons adversely affected thereby 9. On behalf of the State of Himachal Pradesh, it is contended by the learned Advocate General that the petitioners had only the right of representation which was not denied to them and their representations were properly considered. It is further contended that inter departmental correspondence will not confer any right on the petitioners as in the ultimate analysis the final decision has to be made in each matter by the Central Government. In the affidavit filed on behalf of the Central Government, it has been specifically stated that the matter was thoroughly considered by the Central Government after examining all the relevant records. Even the matter was examined by the Advisory Committee constituted for the purpose Our attention has been drawn to Annexure PK in C. W. P. No. 87 of 1972 in which the extracts from the minutes of the Advisory Committee meeting held on 29-3-1972 have been taken. In this meeting the representations submitted by the staff of various departments were considered The representation of Shri Amri Ram petitioner, be ides others, were minutely considered by the said committee. The matter was also finally decided by the Central Government. 10. In rejoinder it was contended by Shri Chhabil Dass on behalf of the petitioners, that the reply affidavit filed on behalf of respondent No. 1 is vague and at least it is not shown how the officer who swore the affidavit was aware about all the relevant facts. It is also contended that the decision taken in the matter is without jurisdiction inasmuch as there is nothing on record to show that the matter was decided by a competent authority. It is, however, conceded by the learned counsel that in case the decision has been taken by the competent authority of the Central Government, the same is valid. The record was produced before us. After examining the record, we find that the decision taken in these matters has been finally approved by Shri K. C. Pant, who was the minister concerned of the department. We find his signatures on the .file, dated 19-4-1972 in token of the final decision. The record was produced before us. After examining the record, we find that the decision taken in these matters has been finally approved by Shri K. C. Pant, who was the minister concerned of the department. We find his signatures on the .file, dated 19-4-1972 in token of the final decision. There is presumption under the law that the official acts have been properly done. It is possible that the petitioners were not aware that the decision had bean finally approved by the Minister concerned and it was perhaps under this mistaken belief that serious objections were taken that the matter was not decided by the Central Government, but it was the decision of the Advisory Committee alone. After examining the record, we are satisfied that the representations made in respect of the matters in controversy were considered by the Advisory Committee and were finally decided by the Central Government. That being the position, the whole matter cannot be reopened once again in these writ petitions. At any rate, it is not the function of this Court to assume the role either of the Advisory Committee or of the Central Government. It is presumed that all the relevant facts and documents as referred to in the writ petition were considered by the competent authority. 11. For the foregoing reasons, we have no hesitation in coming to the conclusion that there is no force in these writ petitions and the same are dismissed. However, keeping in view thecircumstances of these cases, there is no order as to costs. Petitions dismissed. -