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2002 DIGILAW 549 (KER)

C. K. Viswambaran v. Tranvancore Devaswom Board

2002-08-09

M.R.HARIHARAN NAIR

body2002
Judgment :- The questions that arise in these cases filed against the Travancore Devaswom Board (hereinafter called ‘the Board’) are more or less the same and hence these cases were heard together. The main prayer in all these cases is to strike down the integrated seniority list of Ministerial and Sub Group officers of the Board prepared and circulated among the employees on 26-7-1995 which is marked as Ext.P4 in O.P.Nos.14200, 14720 and 16686/95; as Ext.P3 in O.P.No.14657/95 and 18165/67 and as Ext.P5 in O.P.No.14220/95. 2. It is necessary to give the brief history behind the preparation of the controversial seniority list aforementioned. For convenience, I shall refer to the Exhibits as described in O.P.No.14200/95. Before the year 1950, the temples in Travancore area were working under the Travancore State Government. There were Executive and Ministerial Wings for the administration of the temple. The Executive Wing was known by the name ‘Sreekariyam’. The working system was such that persons from the Ministerial Wing had many opportunities for promotion whereas those in the Executive Wings were deprived of such opportunities. Consequently, there was frustration among the Sreekariyam hands and they started clamouring for promotional avenues. Ultimately, the Board issued a Notification dated 21-6-94 implementing integration effective from 1-1-1994 vide Ext.P2 order produced in O.P.No.14200/95 providing, inter alia, the following: “The equation of posts for the purpose of integration in the Ministerial Wing and the Sub Group Officers Wing shall be as follows: It was further directed that departmental tests which were till then not applicable to the Sub Group Officers would thereafter be applicable to all categories of employees. Those who had not passed the test were given temporary exemption for a period of 2 years or till they got four chances to appear for the tests, whichever was later. During the period of temporary exemption the employees would be treated as fully qualified for promotion; but in case they failed to qualify themselves before the expiry of the exemption period, they would be reverted from the promoted post and the period during which they worked in the higher post would not be counted for seniority in the grade. 3. Promotions were accordingly effected based on a common select list prepared on 9-4-1987 as preliminary step for integration. Some of the officers, however, failed to qualify themselves within the period aforementioned and consequently they were reverted. 3. Promotions were accordingly effected based on a common select list prepared on 9-4-1987 as preliminary step for integration. Some of the officers, however, failed to qualify themselves within the period aforementioned and consequently they were reverted. Ext.P4 final seniority list was also published on 26-7-95. It is these acts that paved the way for these Original Petitions. 4. More or less similar arguments were advanced by the counsel appearing for the petitioners in these cases. The crux of the argument is that integration was brought about without giving any opportunity to the individual officers to object to specific proposals and that equal treatment was not given to both categories. It is hence attacked as inequitable and violate of the principles of natural justice. 5. The stand of the Board is that before effecting integration, all the trade unions of the employees were heard and it was based on consensus reached that final orders were issued and that the grievances of the petitioners are nothing but usual grievances that would follow from any integration. No integration of services would be possible without adversely affecting a few; but what has to be looked into is whether the principles adopted were broadly fair and just. It is also stated that after Ext.P2 integration Notification dated 21-6-94, a provisional seniority list was prepared and published and circulated among the officers under Circular dated 1-2-1995 and objections were called for. All the objections submitted by the employees including those of the petitioners herein, if they filed any, were considered by the Board and it was thereafter Ext.P4 order was passed on 26-7-95. 6. It is also pointed out by the Board’s counsel that the merits of the petitioners’ case were considered by this Court, though on a preliminary basis, while dealing with C.M.Ps. filed in various cases seeking avoidance of reversion and it was found on 28-9-95, through a common order, that the earlier order passed by this Court directing status quo to be maintained and avoiding reversions required to be withdrawn. The matter was taken up before a Bench of this Court through W.A.No.1231/95 and connected cases. The Bench confirmed the order on 17-10-95. In view of the findings therein also there is no justification for taking a different view at this stage. 7. I have considered the rival contentions on the merits. The matter was taken up before a Bench of this Court through W.A.No.1231/95 and connected cases. The Bench confirmed the order on 17-10-95. In view of the findings therein also there is no justification for taking a different view at this stage. 7. I have considered the rival contentions on the merits. There is no doubt at all that the integration was effected pursuant to the long standing clamour for promotion raised by the frustrated employees of the Sreekaryam Wing. To redress their grievances, some of the posts of Sub Group Officers had been upgraded and designated as Higher Grade Sub Group Officers and Special Grade Sub Officers. Subsequently, by proceedings dated 12-2-1986, the Board posted the senior most Special Grade Sub Group Officer as Cultural Development Officer equivalent to the post of Assistant Devaswom Commissioner of the Ministerial Wing. However, these reforms benefitted only a handful. To ameliorate the grievance of the officers further, 24 posts of Administrative Officers were created carrying the same pay scale as of Assistant Devaswom Commissioner and postings given to Sub Group Officers in those posts. Since these responsible posts which were thrown open to the Sreekaryam hands were to be properly managed by them, it was essential that test qualification also was to be insisted on. That is why the Rules were amended and in order to save the existing officers from immediate reversion and to provide them adequate opportunity to qualify themselves, four appearance chances provided to them with opportunity to maintain status quo in the meantime. Only those who failed to qualify themselves within the prescribed period were ordered to be reverted. 8. In consequence of the integration, the officers of the Sreekaryam Wing got substantial promotion avenues opened. It cannot therefore be said that the integration was forced on the petitioners and it worked out injustice to them as a whole. True, they were reverted when test qualification was made compulsory; but then, for not qualifying themselves, they have to blame themselves. One cannot have the cake and eat it. If one wants promotion, he has to qualify himself. The contention of the petitioners that without getting qualified, they should be allowed to continue in the responsible posts has no merit or legal basis. 9. Mr. K. Ramakumar, who appeared for the petitoners in some of these cases, placed reliance on the decision in K.I. Shephard and others. If one wants promotion, he has to qualify himself. The contention of the petitioners that without getting qualified, they should be allowed to continue in the responsible posts has no merit or legal basis. 9. Mr. K. Ramakumar, who appeared for the petitoners in some of these cases, placed reliance on the decision in K.I. Shephard and others. v. Union of India and others (Air 1988 SC 686) to contend that the amalgamation and the scheme are bad in law in so far as the petitioners were not heard individually before the changes which would affect their service conditions adversely were implemented. 10. On a perusal of the aforesaid decision, I find that that was not a case of similar facts. First of all, the amalgamation involved there was in respect of banks governed by Banking Regulation Act 10 of 1949 and the amalgamation of Banks was a matter governed by statutory provisions which have per force to be followed. That apart, that was not a case where the petitioners who were former employees lost some seniority or similar benefit only. On the other hand, it was a case where while implementing the amalgamation, the petitioners were totally left out from absorption and thrown to the streets. It was held that their non- absorption and amalgamation of the banks without giving them the benefit of hearing violated the principles of natural justice and was liable to be struck down. 11. Another important difference in the case in hand is that though the petitioners were not individually heard before implementing integration, the Unions representing themselves were heard and the decision for amalgamation was arrived at through a consensus. The point of difference that subsisted after such discussions was only on the question whether the amalgamation should have effect from 1987 as demanded by the Sreekaryam staff. The ultimate decision of the Board was that it should have effect from 1-1-94 only. As far as that aspect is concerned, the Board was quite competent to take a decision. In view of the fact that the amalgamation was implemented not without hearing of the employees, but after hearing through their Unions, I am of the view that there is no violation of natural justice. The petitioners cannot therefore take cover under the decision in the aforesaid case. 12. In view of the fact that the amalgamation was implemented not without hearing of the employees, but after hearing through their Unions, I am of the view that there is no violation of natural justice. The petitioners cannot therefore take cover under the decision in the aforesaid case. 12. The aspects to be borne in mind while effecting amalgamation of services can be found in the decision of the Apex Court in T.N. Educational Department Ministerial and General Subordinate Services Association v. State of Tamil Nadu (AIR 1980 SC 379) where the question of integration of a District Board Service with Tamil Nadu Government Service was considered. “7. In Service Jurisprudence integration is a complicated administrative problem where, in doing broad justice to many, some bruise to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to Government without fussy forensic monitoring, since the administration has been entrusted by the Constitution to the Executive, not to the Court. All life, including administrative life, involves experiment, trial and error, but within the leading strings of fundamental rights, and absent unconstitutional ‘excesses’ judicial correction is not right. Under Article 32, this court is the constitutional sentinel, not the national ombudsman. We need an ombudsman, but the court cannot make do.” The onus is on the challenger to establish that an amalgamation is illegal and unjust. If there is nothing berserk or bizarre, the scheme should not be struck down especially when the court feels disinclined to rub its eyes to query what strange thing the employer was doing. The mere fact that a better formula perhaps could have been evolved will not justify substitution of the court’s wisdom for the authority’s. The court’s duty is only to see that unreasonable perversity, mala fide manipulation, indefensible arbitrariness and similar infirmities do not define the equation for integration. An order cannot be demolished merely because it adversely affects some employees. Curial therapeutic, it was held, can heal only the pathology of unconstitutionality; but not every injury. 13. Kewal Krishan Bagga v. Chairman, Railway Board (AIR 1976 SC 1961) related to the taking over of a workshop by the Government of India. After absorption instead of appointing the petitioner as a Godown Keeper which post he was holding, he was posted as a Clerk under the Government of Punjab and that was the order challenged. 13. Kewal Krishan Bagga v. Chairman, Railway Board (AIR 1976 SC 1961) related to the taking over of a workshop by the Government of India. After absorption instead of appointing the petitioner as a Godown Keeper which post he was holding, he was posted as a Clerk under the Government of Punjab and that was the order challenged. The court held that there was no substance in the grievance that the post of Godown keepers should not have been equated with that of Clerks. 14. Kerala State Electricity Board v. N.Sukesen and others (AIR 1996 SC 2525) in which the petitioners rely related to fixation of inter se seniority based on amalgamation of the secretariat establishment of the Board with the general establishment including the Accounts Wing. The Court set aside the order; but it has to be noticed that the facts of the case were entirely different. The secretariat establishment had not been formed based on any regular rule or after a selection process. The evidence showed that the selection was based on option on the basis of ‘merit, ability and suitability’, decided merely by the Chairman of the Board. No tests or interviews were conducted. The chairman merely took into consideration the fidelity and confidence that the opted employees impressed upon the Chairman. Only persons known to the Chairman got selected into the Secretariat. The integration was limited to the staff so selected. The Post of Assistant Secretary in the Secretariat was equated with the Assistant Accounts Officer which post was held by persons with much longer service. The amalgamation took into account the seniority of the Assistant Secretaries in the Secretariat Wing which was based on selection by the Chairman as aforementioned which itself was unfair. It was on these circumstances that the Court was inclined to interfere and to set aside the fixation of seniority on the basis length of service in the Secretariat on the particular date without taking into account the promotions earned in the other Wings. 15. Kailash Chand v. Lt. Governor of Delhi ((1997) 3 SCC 27) considered the propriety of the fixation of seniority of officers of Executive and Ministerial cadres in the integrated cadre on the basis of their seniority in their former cadres as on the date immediately preceding the date of integration and by rotating the names of officers of the Executive Cadre and Ministerial Cadre. Governor of Delhi ((1997) 3 SCC 27) considered the propriety of the fixation of seniority of officers of Executive and Ministerial cadres in the integrated cadre on the basis of their seniority in their former cadres as on the date immediately preceding the date of integration and by rotating the names of officers of the Executive Cadre and Ministerial Cadre. Certain fortuitous circumstances enabled the officers of the Ministerial Branch to get some advantage over the officers of the Executive Branch. It was held that this was not a ground to annul the relevant provision in the Service Rules concerned. 16. Kerala Magistrates’ (Judicial) Association and others v. State of Kerala and others (2001) 3 SCC 521) relied on by the respondents considered the legality and propriety of fixing unequal ratio for promotion of the Munsiffs and Magistrates whose services were integrated. After fixing a common seniority list based on length of service, it was provided that in the matter of officers holding the same pay scale viz., Sub Judges and C.J. Ms the ratio for further promotion would be 3:1 thereby enabling the Civil Officers thrice the opportunity that the C.J.Ms. would have. Likewise, the proportion for promotion to the post of Sub Judge/C.J.M. was fixed as 5:2 between the Munsiffs of the Civil judicial Service and the Magistrates of the Criminal Judicial Service. While upholding the validity of the integration scheme and the common seniority list, the court noticed that the particular proportion was fixed taking into account the fact that the promotion avenues that prevailed for the two sets of officers before the integration varied widely. The Magistrates before integration could have aspired for only one promotion viz. as C.J.M. and the further promotion to the post of District (Sessions) Judge was available only for the Civil Judicial Officers. In consequence of the integration, the Magistrates acquired the chance for promotion to a larger number of posts which were previously available only to the Civil Judicial Officers. It was taking into account these aspects also that the particular promotion scheme was upheld. 17. In the present cases also the position is more or less similar. The executive staff working in temples did not have opportunity to go to higher posts, that is upto the post of Deputy Commissioner, earlier. It was taking into account these aspects also that the particular promotion scheme was upheld. 17. In the present cases also the position is more or less similar. The executive staff working in temples did not have opportunity to go to higher posts, that is upto the post of Deputy Commissioner, earlier. The consequence of the scheme in question was that they got opportunity to be considered for promotion to all higher posts in the Board’s Service along with the officers of the Ministerial Wing. This was a big boon for them. Heart burn to the Ministerial Wing who had exclusive opportunity for promotion to all such promotion posts till then was also to be avoided. Necessarily, a compromise formula of equitable basis has to be arrived at when integration of unequals is attempted. If this aspect is borne in mind, I do not think that the scheme in question has worked out any injustice to the executive staff. It is true that the petitioners were reverted through the orders impugned in these Original Petitions; but for this they have to blame themselves is so far as the only reason for such reversion was the failure to acquire the test qualification which was certainly essential for proper handling of the responsible posts to which they had been promoted with opportunity to qualify themselves. In these circumstances, I do not think that there is any merit in these petitions and accordingly they are dismissed.