DHOLE GOVIND SAHEBRAO & OTHERS v. UNtON OF INDIA &OTHERS

31Copy pinpoint31. Having given our thoughtful consideration to the A submissions advanced at the hands of the learned counsel for the rival parties, on the basis of Rule 4 of the TA Rules, 2003, and Rule 5 of the STA Rules, 2003, it is not possible for us to conclude, that members of either of the two cadres (the erstwhile ministerial cadre, and the cadre of Data Entry B Operators) can be treated to be superior to one or the other, on account of the pointed deficiency, highlighted by the learned counsel. It clearly emerges from the provisions relied upon, that consequent upon the completion of the process of computerization, in the Customs and Central Excise c Department, the erstwhile members of the ministerial cadre needed to be trained in computer applications, and the erstwhile members of the cadre of Data Entry Operators required to be instructed in relevant procedures. Thus viewed, it is not possible for us to accept the contention of learned D counsel, that either of the two cadres ought to be treated as superior to the other. The first contention, premised on Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003, respectively, is devoid of any merit, and is accordingly hereby rejected. E

32Copy pinpoint32. We shall now deal with the second submission advanced before us during the course of hearing, namely, the second contention noticed in paragraph 26 above. The pointed submission advanced before us was, that the equation of posts under Rule 4 of the TA Rules, 2003, and under Rule 5 of the F STA Rules, 2003, was based exclusively on the pay-scales attached to them. The resultant inter se seniority between the posts at the initial constitution of the cadres under reference, was also based exclusively on the pay-scales of the posts sought to be merged. The aforesaid determination, under G Rules 4 and 5 referred to hereinabove, according to learned counsel, is wholly impermissible in law.

33Copy pinpoint33. In order to canvass the proposition noticed in the foregoing paragraph, learned counsel placed reliance on the H

248 SUPREME COURT REPORTS [2015] 15 S.C.R.

A decision rendered by this Court in Chandrakant Anant Kulkarni's case (supra). The controversy in the judgment cited for our consideration, was aimed at determining, whether there was denial of fair and equitable treatment, within the meaning of sub-section (5) of Section 115 of the States Reorganization B Act, 1956. The aforesaid fair and equitable treatment was, with reference to the posts of Assistant Sales Tax Officers (from the former States of Madhya Pradesh and Hyderabad) and Sales Tax Inspectors (from the former State of Bombay), who were allocated to the new State of Bombay. The question c which arose for consideration, also had a bearing on the right to promotion to the next higher post of Sales Tax Officer. This Court while determining the above controversy, held as under:- "9. Prior to the reorganisation of the States, a conference of the Chief Secretaries of the States D that were to be affected by the reorganisation was held at Delhi on May 18 and 19, 1956 for the purpose of the formulation of the principles upon which integration of services was to be effected. The Government of India by their letter dated April E 3, 1957 informed the State Government that the work of integration of services should be dealt with by them in the light of the general principles already settled at the Chief Secretaries Conference. This has been construed to be a valid delegation of powers to prepare the preliminary and final gradation lists under the direction and with the sanction of the Central Government. The Government of India by its circular dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States' representatives that it would not be appropriate to provide any protection in the matter of departmental promotion. This circular has been interpreted as a prior approval of the Central H Government in terms of the proviso to sub-section

DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 249 INDIA &OTHERS [JAGDISH SINGH KHEHAR, J.]

(7) of Section 115 of the Act in the matter of change in the conditions of service relating to departmental promotions.

10. The following principles had been formulated for being observed as far as may be, in the integration of government servants allotted to the services of the new States: "In the matter of equation of posts: (i) Where there were regularly constituted similar cadres in the different integrating units c the cadres will ordinarily be integrated on that basis; but (ii) Where, however, there were no such similar cadres the following factors will be taken into consideration in determining the equation of posts- (a) nature and duties of a post; (b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) the minimum qualifications, if any, prescribed for recruitment to the post, and (d) the salary of the post." F It is well settled that these principles have a statutory force.

11. There is a long line of decisions of this Court starting from the Union of India v. P.K. Roy, (1968) 2 SCR 186, laying down that the Central G Government has been constituted to be the final authority in the matter of integration of services under sub-section (5) of Section 115 of the Act. The matter of equation of posts is purely an administrative function. It has been left entirely to H

250 SUPREME COURT REPORTS [2015] 15S.C.R.

A the Central Government as to how it has to deal with these questions. The Central Government had established an Advisory Committee for the purpose of assisting in the proper consideration of the representations made to it. There is nothing in B Sections 115 to 117 of the Act prohibiting the Central Government in any way from taking the aid and assistance of the State Government in the matter of effecting the integration of services. As observed by this Court in Roy case the usual c procedure followed by the Central Government in the matter of integration of services generally, is in order. It is not open to the court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps, the only question the court can enquire into is whether the four principles agreed upon at the Chief Secretaries Conference had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate. But where, as here, in the matter of equation of posts, the Central Government had properly taken into account all the four principles decided upon at the Chief F Secretaries Conference, the decision cannot be assailed at all. In the present case, notonly the Central Government had laid down the principles for integration, but also considered the representations and passed the final orders and G the provisional gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government.

12. In accordance with the principles settled at the H Chief Secretaries Conference, the Government of

DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 251. INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

India, in consultation with the Central Advisory A Committee, directed that the posts of ASTOs in the former States of Madhya Pradesh and Hyderabad should be continued in an isolated category, there being no corresponding post in the successor State of Bombay with which they could be equated. There B were 19 AST Os in the pay scale of Rs 150-10-200- EB-15-250 from Madhya Pradesh and 23ASTOs in the pay scale of Rs 170-8~-225-EB-13-320 from Hyderabad allocated to the new State of Bombay. In the former State of Bombay there was no similarly c constituted cadre of ASTOs, but there were posts of STls in the pay scale of Rs 120-8-144-EB-8-200- 10/2-250. It would have been inequitable and unfair to equate ASTOs from Madhya Pradesh and Hyderabad with STls from Bombay, looking to the D nature of their posts, the powers and responsibilities and the pay scales attached to the same. The A.STOs from Madhya Pradesh and Hyderabad were, in the first instance, superior to STls in their respective States and the post of ASTO E in those States was a promotion post. In addition, AST Os in those States were Assessing Authorities and they enjoyed statutory powers of their own to assess tax and levy penalties, whereas the STls in Bombay had no such powers to assess tax or levy F penalty but had merely to scrutinise returns and generally act in a subordinate capacity to STOs. Evidently, the State Government was wrong in directing by its Resolution dated November 16, 1957 that the seniority of ASTOs from Madhya G Pradesh and Hyderabad and STls from Bombay be fixed in the cadre of STls in the reorganised State of Bombay on the basis of continuous service including that in the lower grade. The principle adopted by the State Government for determining H

. 252 SUPREME COURT REPORTS [2015] 15 S.C.R.

A their relative inter se seniority was obviously wrong, being contrary to the principles settled at the Chief Secretaries Conference. As already stated, the Government of India, on representation by the affected ASTOs from Madhya Pradesh and B Hyderabad, in consultation with the Central Advisory Committee, directed that the inter se seniority should be fixed taking into account continuous service in the equated grade only subject to the inter se seniority of the officers coming from the several c integrating regions. Upon that basis, the State Government by its Resolution dated September 10, 1960, rightly modified Notes 3 and 6 of its 1957 Resolution and directed that the seniority as on November 1, 1956 of ASTOs from Madhya D Pradesh and Hyderabad be fixed above the persons in the cadre of STls and that the inter se seniority of ASTOs from Madhya Pradesh and Hyderabad be fixed on the basis of their continuous service asASTOs in their respective States." E Having dealt with the controversy on the parameters recorded through the aforesaid observations, this Court concluded as under:- "19. Be that as it may, the fact remains that the condition regarding the passing of the departmental examination became incapable of compliance in the case of ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Grade Ill. They were entitled to such promotion without passing su·ch examination. Under the relevant ruies which regulated their conditions of service, there was only a possibility of reversion in the eventuality of their not passing the examination within the stipulated time. Since no examinations admittedly have been held, there is no question of H

DH OLE GOVIND SAHEBRAO & OTHERS v. UNION OF 253 INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

their reversion asASTOs. lfthe decision of the High A Court were to be upheld, it would imply that many of the ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Grade Ill and during the past 20 years have reached the higher echelons of service, would now have to be put back as ASTOs, for no fault of their own. Many of them either have retired or are on the verge of retirement.

20. There was thus no alternative for the State Government but to suspend the operation of the amendment made on January 20, 1961 to Rule 1 (b )(ii) of the Recruitment Rules, by its order dated October 1, 1965, which made the passing of the STO examination a condition precedent for promotion of STls to STO Grade Ill. There can be no doubt that the State Government's Resolution dated June 13, 1964 and its memorandum of November 21, 1964, clarifying that theASTOs from Madhya Pradesh and Hyderabad were entitled for promotion to the post of STO Grade Ill without passing the departmental examination, placed STls from Bombay at a disadvantage. To ensure 'fair and equitable treatment', the State Government rightly dispensed with the requirement of passing the departmental examination in the case of STls from the former State of Bombay.

21. In the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with the best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub-section (5) of Section 115 of the Act speaks of"fair and equitable treatment", obviously it envisages a decision which is fair and equitable to all." H

254 SUPREME COURT REPORTS [2015] 15 S.C.R.

34Copy pinpoint34. Reliance was also placed on the decision of this Court in S.P. Shivprasad Pipal v. Union of India & Ors., (1998) 4 SCC 598. In the said judgment, this Court considered the validity of the notification dated 3.2.1987, which had resulted in the constitution of a Central Labour Service, by a merger of B three existing cadres. According to the appellant before this Court, the three cadres which were sought to be amalgamated, had different statutory functions, different qualifications and different duties and powers. By merging the three cadres, according to the appellant before this Court, unequals had been c treated as equals. The pointed contention on behalf of the appellant, who belonged to one of the three cadres was, that he had been placed in a condition, worse than the position he occupied in the original cadre. The claim of the appellant was, that his chances of promotion had been substantially o diminished. One of the grounds for raising the challenge was, that the merger of the three cadres was in violation of Articles 14 and 16 of the Constitution of India. This Court having taken into consideration the decision in the Chandrakant Anant Kulkarni's case (supra), concluded as under:- E "14. The Cadre Review Committee after examining the kinds of duties discharged by these officers decided that since they all worked in the area of labour welfare, it would be desirable that they could widen their experience. This would be possible if the cadres were integrated and the posts were made interchangeable so that the members of the cadre could get a more" varied experience in different areas of labour welfare, thus making for a better-equipped cadre. Therefore, although the exact nature of work done by the three cadres was different, it would be difficult to say that one cadre was superior or inferior to the other cadre or service.

15. A decision to merge such cadres is essentially H a matter of policy. Since the three cadres carried

DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 255 INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected by the merger of the cadres. ·

16. The appellant, however, contends that as a result of the merger his promotional chances have been very adversely affected because his position in the seniority list has gone down. Rule 9 of the Central Labour Service Rules, 1987 under which the merger is effected, lays down the rules of seniority. It provides that the inter se seniority of the officers appointed to the various grades mentioned in D Schedule I at the initial constitutional stage of the service shall be determined according to the ·length of regular continuous service in the grade subject to maintenance in the respective grade of inter se seniority of officers recruited in their respective original cadres. The proviso to this Rule prescribes that although Assistant Labour Commissioner (Central), Labour Officer and Assistant Welfare Commissioner shall be equated, all Assistant Labour Commissioners (Central) holding such posts on or before 31-12-1972 shall be en bloc senior to Labour Officers and (2) Senior Labour Officers and Regional Labour Commissioners shall be equated. But all Regional Labour Commissioners holding such posts on or before G 2-3-1980 shall be en bloc senior to the Senior Labour Officers.

17. Explaining the proviso the respondents have said that before 31-12-1972 Assistant Labour Commissioners were in a higher pay scale than H

256 SUPREME COURT REPORTS [2015] 15S.C.R.

A Labour Officers. The parity between their pay scales came about only from.January 1973. That is why to preserve their inter se position, Assistant La..," ,, Commissioners appointed prior to 31-12- 1g12 have ,_,0c;n placed above Labour Officers. B Similarly, Regional Labour Commissioners drew a higher pay scale than Senior Labour Officers prior to 1980. The parity has come about in 1980 and hence Regional Labour Commissioners holding such posts on or before 2-3-1980 have been placed c above Senior Labour Officers.

18. The seniority rules have thus been carefully framed taking all relevant factors into consideration. The respondents have also pointed out that as a matter of fact, by reason cf the merger, the appellant has r1Gl, in fact, suffered ar.y prejudice and he has also received promotions.

19. However, it is possible that by reason of such a merger, the chance of promotion of some of the employees may be adversely affected, or some others may benefit in consequence. But this cannot be a ground for setting aside the merger which is essentially a poticy decision. This Court in Union of India v. S.L. Dutta, (1991) 1 SCC 505, examined this contention. In S.L. Dutta case a change in the promotional policy was challenged on the ground that as a result, service conditions of the respondent were adversely affected since his chances of promotion were reduced. Relying upon the decision in the State of Maharashtra v. Chandrakant Anant Kulkarni, (1981 )4 sec 130, this Court held that a mere chance of prof",otion was ·1ot a condition of service and the fact that tt,..;re was a reduction in the crance of promotion would not amount to a shn11ge :n the conditions of service."

35Copy pinpoint35. It is in the background of the aforesaid submission advanced at the hands of learned counsel, that we would consider the validity of the merger of cadres contemplated by

DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 257 INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, A

2003. The position in the present controversy is not comparable to the position examined by this Court in the Judgments referred to hereinabove. It needs to be understood, that the cadre of Data Entry Operators, was created out of the original ministerial cadre. It is, therefore apparent, that the members of the two cadres were originally discharging similar duties. It is only as a consequence of the administrative decision to computerize the fun·ctioning of the Customs and Central Excise Department, that a separate cadre of Data Entry Operators came to be created. The newly created cadre, exclusively functioned towards giving effect to the decision to computerize the functioning of the department. There was thereafter a division of duties discharged by the original members of the ministerial cadre. One cadre of employees exclusively thereafter discharged procedural duties of the o department, whereas, the other cadre of employees exclusively thereafter discharged duties aimed at computerization of the functioning of the department. Even though, it is apparent, that the Data Entry Operators exclusively functioned towarc' the process of computerization of the functioning of the E Customs and Central Excise Department, yet that could not be possible without their existing experience in the erstwhile ministerial cadre. Consequent upon the merger of posts, consequent; upon the promulgation of the TA Rules, 2003, and the STA Rules, 2003, the nature and duties of the two cadres F were combined. Consequent upon their appointment as Tax Assistar:its and Senior Tax Assistants, members of the erstwhile ministerial cadre, and members of the cadre of Data Entry Operators, were required to perform both procedural duties and duties relating to computer applications. The G deficiencies in the two cadres sought to be merged, were sought to be overcome, by subjecting the members of the 1':10 cadres to different examinations, whereby, the two cadres were trained for discharging their duties efficiently, on merger, whilst holding the posts of Tax Assistants/Senior Tax Assistants. It H

258 SUPREME COURT REPORTS [2015] 15S.C.R.

A is, therefore, not possible for us to accept, that there was any serious difference between the two merged cadres, either on the issue of nature of duties, or on the subject of powers exercised by the officers holding the post, or the extent of territorial or other charge held, or responsibilities discharged B by them, or for that matter, the qualifications prescribed forthe posts. On account of the aforesaid, by and large similarity, we are satisfied, that the merger of the cadres, and the determination of the inter se seniority on merger, were justifiably determined, on the basis of the different pay-scales of the c cadres merged, under the TA Rules, 2003 and the STA Rules,

2003. By the mandate of the above Rules, all posts in equivalent pay-scales were placed at the same level. Posts in the higher scale of pay, were given superiority on the subject of inter se seniority, with reference to posts in the lower scale of pay. In D our considered view, the above determination, at the hands of the rule framing authority, on the issue canvassed before us, cannot be termed either arbitrary or discriminatory. We are, therefore satisfied in concluding, that the provisions of Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003, E cannot be faulted on the touchstone of Articles 14 and 16 of the Constitution of India.

36Copy pinpoint36. For all the reasons recorded hereinabove, we are satisfied, that the different orders passed by the A~ministrative Tribunal, and the common order dated 13.4.2007 passed by the High Court, are liable to be set aside. The same are accordingly hereby set aside. The appeals filed by those who moved to the cadre of Data Entry Operators from the ministerial cadre, and were thereupon amalgamated in the cadre of Tax Assistants/SeniorTaxAssistants, are allowed. The connected appeals preferred by the Union of India, are also allowed. In the above view of the matter, the authorities shall give effect to Rules 4 and 5 of the TA Rules, 2003 and the STA Rules, 2003, respectively, without any further delay. Bibhuti Bhushan Bose Appeals allowed. H