1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITON
CIVIL APPEAL NOS. 59695970 OF 2009
Union of India & Ors. etc. etc. .. Appellants
Versus
S. Maadasamy and Anr. etc. etc. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. As both these appeals arise out of the impugned common
judgment and order passed by the High Court and are between
the same parties, the same are being disposed of by this common
judgment.
2. Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 29.10.2007 passed by the
High Court of Madras in Writ Petition Nos. 44921 and 44922 of
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2006, by which the High Court has dismissed the said writ
petitions preferred by the appellantsUnion of India and others
and confirmed the judgment and order passed by the learned
Central Administrative Tribunal dated 04.07.2006 in O.A. No.
218 of 2005 and O.A. No. 814 of 2005, the Union of India and
othersoriginal writ petitioners before the High Court have
preferred the present appeals.
3. The facts leading to the present appeals in nutshell are as
under:
That respondent no. 1 hereinoriginal applicant initially joined
the services in the Government of Puducherry as a Craft
Instructor in the Labour Department on 03.11.1975 and was
appointed as the Group Instructor on regular basis. That,
thereafter he was promoted as Inspector of Factories on
27.09.1982 and as Principal, Group ‘A’ (Junior Scale) on regular
basis w.e.f. 25.08.1989. That, thereafter on 26.07.2001, he was
promoted as the Joint Chief Inspector of Factories (hereinafter
referred to as the “JCIF”) on regular basis. The promotion of
respondent No. 1original applicant was challenged by one Sri
P.S. Krishnamurthy, who was promoted as Principal, Group ‘A’
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(Junior Scale) subsequent to the promotion of respondent No. 1
original applicant. On the representation made by the said Sri
P.S. Krishnamurthy, the Government initiated steps to convene a
review DPC, but the same was rejected by the UPSC. Thereafter,
respondent no. 1original applicant joined duty in the said post
on 26.07.2001. The said promotion was challenged by Sri P.S.
Krishnamurthy by way of O.A. No. 795 of 2001, but the same
was dismissed by the Central Administrative Tribunal (for short
‘Tribunal’) on 29.07.2001. According to the appellants, the
Government of Puducherry also sent a proposal to UPSC for
amendment of the recruitment rules equating the post of
Principal, ITI held by Sri P.S. Krishnamurthy with that of JCIF.
It appears that pursuant to the draft recruitment rules equating
the posts, respondent No. 1original applicant was transferred
from JCIF and posted as Principal, Group ‘A’ (Senior Scale) on
30.09.2003. It appears that, in the meantime, in the year 1998
the Government of Puducherry decided to create one post of
Principal (Senior Scale) (Rs.30004500/ later revised to
Rs.10,00015200/) in the Government ITI at Karaikal.
According to the Department, the same was pursuant to the
order of the Tribunal, based on the number of students at ITI,
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Karaikal being more than 400. The same was done in
anticipation of the approval of the Government of India, by
keeping one post of Principal (Junior Scale) in abeyance. That
the Government of India, by order dated 19.10.2000 sanctioned
the proposal for creation of the post of Principal, Group ‘A’
(Senior Scale) subject to the condition that one post of Principal
(Junior Scale) which was kept in abeyance, should be abolished.
That, thereafter respondent No. 1 working as Principal (Junior
Scale) in ITI, Puducherry was promoted to the post of JCIF vide
order dated 26.07.2001. That, thereafter on 17.09.2001,
pursuant to the approval received from the Government of India
for the creation of one post of Principal (Senior Scale), one post of
Principal (Junior Scale) was abolished. It appears that pursuant
to the draft recruitment rules equating the posts of Principal, ITI
and the JCIF, respondent No.1original applicant was transferred
from JCIF and posted as Principal, Group ‘A’ (Senior Scale) on
30.09.2003. That the said order was challenged by respondent
No. 1 hereinoriginal applicant before the learned Tribunal by
way of O.A. No. 869 of 2003. That the said O.A. came to be
allowed by the Tribunal vide its order dated 06.01.2004. The
writ petition challenging the judgment and order passed by the
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learned Tribunal came to be dismissed by the High Court on
16.02.2005. At this stage, it is required to be noted that while
quashing and setting aside the order dated 30.09.2003
transferring respondent No. 1 from JCIF to Principal, Group ‘A”
(Senior Scale), the learned Tribunal held that reliance placed on
draft recruitment rules to support the transfer, cannot be
sustained, as the mere approval of the Lt. Governor is not enough
and the consultation with and approval of the UPSC is required
and thereafter, it has to be notified. The Tribunal also held the
transfer as mala fide and passed with ulterior motive. The
Tribunal also observed and held that after the rules are approved
by UPSC and notified, the Government would be at liberty to
make the transfer of the original applicant.
3.1 It appears that, thereafter the notification being G.O. No. 6
dated 08.03.2005 to amend the recruitment rules relating to the
post of JCIF/Chief Principal, Group ‘A’ (Senior Scale) was
published on 15.03.2005. Simultaneously, on the same date,
respondent No. 1 hereinoriginal applicant came to be transferred
and posted as Principal, Group ‘A’ (Senior Scale) to the
Government ITI, Karaikal from the post of JCIF, Puducherry.
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The said order of transfer came to be challenged by respondent
No. 1original applicant before the learned Tribunal by way of
O.A. No. 218 of 2005. That, by way of O.A. No. 814 of 2005,
respondent No. 1original applicant challenged the revised
recruitment rules introduced by G.O. No. 6 dated 08.03.2005,
equating the two posts, namely the post of JCIF and the post of
Principal Group ‘A” (Senior Scale) and also to set aside the said
amended recruitment rules.
3.2 That the learned Tribunal quashed and set aside the order
of transfer dated 15.03.2005 stating that the same was mala fide
and passed with an ulterior motive. The learned Tribunal also
allowed O.A. No. 814 of 2005 and held that the amended rules
are arbitrary and violative of Articles 14 and 16 of the
Constitution of India. According to the learned Tribunal, the
purpose for bringing the amended rules was not germane, but
was directed only to achieve a different purpose.
3.3 Feeling aggrieved and dissatisfied with the order passed by
the learned Tribunal in O.A. No. 218 of 2005 quashing and
setting aside the order of transfer dated 15.03.2005 and the
judgment and order passed in O.A. No. 814 of 2005 quashing
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and setting aside the amended recruitment rules equating the
post of Principal Group ‘A” (Senior Scale) with that of the post of
JCIF, the appellants hereinUnion of India and others preferred
writ petitions before the High Court. That, by the impugned
common judgment and order, the High Court has dismissed both
the writ petitions and confirmed the judgment and order passed
by the learned Tribunal quashing and setting aside the order of
transfer dated 15.03.2005 and setting aside the amended rules
equating the post of Principal Group ‘A” (Senior Scale) with that
of the post of JCIF. That, by the impugned judgment and order,
the High Court has dismissed both the writ petitions. Hence, the
present appeals challenging the impugned common judgment
and order passed by the High Court in Writ Petition Nos. 44921
and 44922 of 2006 confirming the judgment and order passed by
the learned Tribunal in O.A. No. 218 of 2015 and O.A. No. 814 of
2005 dated 04.07.2006.
3.4 Now, so far as the challenge to the impugned common
judgment and order passed by the High Court dismissing the writ
petition and confirming the judgment and order passed by the
learned Tribunal in O.A. No. 218 of 2005, by which the learned
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Tribunal set aside the order of transfer dated 15.03.2005 is
concerned, it is the admitted position that in view of the
subsequent development and respondent No. 1 hereinoriginal
applicant has retired on attaining the age of superannuation, as
such, the challenge to the order passed by the High Court
confirming the order passed by the learned Tribunal quashing
and setting aside the order of transfer dated 15.03.2005 has
become infructuous/academic. Even otherwise, there are
concurrent findings given by both, the learned Tribunal as well
as the High Court holding that the order of transfer was mala
fide and with the oblique motive. Therefore, the appeal
challenging the impugned judgment and order passed by the
High Court dismissing the writ petition and confirming the
judgment and order passed by the learned Tribunal in O.A. No.
218 of 2005 stands disposed of as infructuous/academic.
3.5 However, the question still remains how the period from the
order of transfer dated 15.03.2005 till respondent No. 1original
applicant attained the age of superannuation is to be
treated/considered. It appears that at the time when respondent
No. 1original applicant attained the age of superannuation, he
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has been paid the retirement benefits and the
pension/pensionary benefits vide order dated 18.08.2016 and the
period from 15.03.2005 till he attained the age of superannuation
is treated as diesnon and he has been paid the
pension/pensionary benefits accordingly. Therefore, it will be
open for respondent No. 1original applicant to challenge the
order dated 18.08.2016 treating the period between 15.03.2005
till he attained the age of superannuation as diesnon, before the
appropriate Court/Forum and as and when such proceedings are
initiated, the same may be considered in accordance with law
and on its own merits.
4. In view of the above, now the challenge to the impugned
judgment and order passed by the High Court confirming the
order passed by the learned Tribunal in O.A. No. 814 of 2005 by
which the amended recruitment rules vide notification G.O. No.
6 dated 08.03.2005 equating the post of Principal, Grade ‘A’
(Senior Scale) with that of JCIF survives.
4.1 Shri A. Mariarputham, learned Senior Advocate has
appeared on behalf of the appellants. Learned counsel appearing
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on behalf of the appellants has vehemently submitted that, as
such, the challenge to the amended rules by respondent No. 1
original applicant before the learned Tribunal was limited to
equating the two posts and not the entirety of the rules. It is
further submitted by the learned counsel appearing on behalf of
the appellants that, even otherwise, in the facts and
circumstances of the case, both, the learned Tribunal as well as
the High Court have committed grave error in quashing and
setting aside the amended rules equating the post of Principal,
Group ‘A’ (Senior Scale) with that of the post of JCIF. It is
submitted that the educational and other qualifications
prescribed for the two posts in question, namely JCIF and
Principal, Grade ‘A’ (Senior Scale) are identical; that the feeder
cadre/posts for both the posts are also identical and having
common rules for the two posts. It is submitted that, therefore,
in that view of the matter, the equations of two posts cannot be
said to be badinlaw. It is further submitted by the learned
counsel appearing on behalf of the appellants that even in the
lower cadres, the pattern of having the same rules for a group of
posts, where the feeder cadres are the same, was in existence.
In support of his above submission, he has relied upon the 1982
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Rules, governing the post of Inspector of Factories, Principal and
Technical officers. It is submitted that a person posted as
Inspector of Factories is transferable as Principal and viseversa
etc.
4.2 It is further submitted by the learned counsel appearing on
behalf of the appellants that both, the learned Tribunal as well as
the High Court have materially erred in quashing and setting
aside the amended rules equating the aforesaid two posts, on the
ground that the duties and responsibilities with respect to the
two posts are not similar/identical. It is submitted that there is
no requirement in law that all the posts clubbed together should
be identical in respect of duties and responsibilities and
functions. It is submitted that by the very nature of things, it
will not be identical. It is submitted that what is to be seen is
whether the person is capable/competent to discharge the
functions of both the posts. It is submitted that having regard to
the identical, educational and other qualifications prescribed and
coming from the feeder cadres common to both, they are
competent to man both the posts and capable of discharging the
functions of both the posts. It is submitted that, in the present
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case and in the case of respondent No. 1 himself, in fact, his
initial appointed was as a craft instructor; later he became the
Inspector of Factories and thereafter he got promoted as Principal
(Junior Scale) and thereafter got promoted as JCIF.
4.3 It is further submitted by the learned senior counsel
appearing on behalf of the appellants that, even otherwise, the
principles laid down by this Court for an administrative
determination as to whether two posts are equivalent in nature
for different purposes such as absorption, counting the length of
service for seniority, cannot be invoked to strike down a
legislative exercise of rule making under the proviso to Article
309 of the Constitution of India which has been held to be
statutory and legislative in character.
4.4 It is further submitted by the learned counsel appearing on
behalf of the appellants that, therefore, on facts the decision of
this Court in the case of Union of India v. P.K. Roy (1968) 2
SCR 186 as well as the decision in the case of SubInspector
Roop Lal v. Lt. Governor (2000) 1 SCC 644, relied upon by the
High Court shall not be applicable to the facts of the case on
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hand, more particularly, when the amended rules equating the
posts were statutory and legislative in character.
4.5 It is further submitted by the learned counsel appearing on
behalf of the appellants that, even otherwise, on facts, both, the
learned Tribunal and the High Court have committed a grave
error in quashing and setting aside the amended rules equating
the post of Principal, Grade ‘A’ (Senior Scale) with that of the post
of JCIF, inasmuch as the amended rules were approved by the
UPSC and the rules were amended in consultation with the UPSC
and after elaborate discussions thereafter the UPSC gave its
concurrence/approval and thereafter the rules were amended
equating the two posts.
4.6 Relying upon the decision of this Court in the case of P.U.
Joshi v. Accountant General, Ahmedabad (2003) 2 SCC 632, it
is vehemently submitted by the learned counsel appearing on
behalf of the appellants that, as such, it is ultimately for the
Government to take an appropriate decision on equation of posts.
It is submitted that questions relating to the constitution,
pattern, nomenclature of posts, cadres, categories and other
conditions of service including avenues of promotions and criteria
14
to be fulfilled for such promotions pertain to the field of Policy
and within the exclusive discretion and jurisdiction of the State.
It is submitted that, therefore, the learned Tribunal and the High
Court have committed a grave error in interfering with such a
policy decision/decision of the Government to equate two posts,
which were after due deliberations and in consultation with the
UPSC.
4.7 Making the above submissions, it is prayed to allow the
present appeals and quash and set aside the impugned judgment
and order passed by the High Court and the learned Tribunal
insofar as quashing and setting aside the notification – G.O. No.
6 dated 18.03.2005 by which the post of Principal, Grade ‘A’
(Senior Scale) was equated with the post of JCIF.
5. Shri Pramod Swarup, learned Senior Advocate appearing on
behalf of respondent No. 1 has supported the impugned
judgment and order passed by the High Court. It is submitted
that the impugned judgment and order passed by the High Court
upholding the judgment and order passed by the learned
Tribunal quashing and setting aside the amended rules equating
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the post of Principal, Grade ‘A’ (Senior Scale) with that of the post
of JCIF is absolutely just and proper and considering the
decisions of this Court in P. K. Roy (supra) and Roop Lal
(supra). It is submitted that as it was found that the nature of
duties; responsibilities and powers exercised by holding the two
posts are not similar and identical and, therefore, the High Court
was justified in confirming the judgment and order passed by the
learned Tribunal quashing and setting aside the amended rules.
Therefore, it is prayed to dismiss the present appeals.
6. Heard learned counsel appearing on behalf of the respective
parties at length.
6.1 As observed hereinabove, now in the present appeals, the
challenge to the impugned judgment and order passed by the
High Court dismissing the writ petition and confirming the
judgment and order passed by the learned Tribunal in O.A. No.
814 of 2005 quashing and setting aside the amended rules
equating the post of Principal, Grade ‘A’ (Senior Scale) with that
of JCIF survives. Therefore, the only question which is now
required to be considered by this Court is whether, in the facts
and circumstances of the case, the High Court is justified in
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dismissing the writ petition and confirming the order passed by
the learned Tribunal quashing and setting aside the amended
rules by notification – G.O. No. 6 of 2015 dated 08.03.2015
equating the post of Principal, Grade ‘A’ (Senior Scale) with that
of the post of JCIF?
6.2 From the impugned judgment and order passed by the High
Court, it appears that the High Court has dismissed the writ
petition, confirming the judgment and order passed by the
learned Tribunal quashing and setting aside the amended rules
equating the post of Principal, Grade ‘A’ (Senior Scale) with the
post of JCIF mainly on the ground that the nature of duties of
both the posts, responsibilities and powers exercised by the
officers holding the posts are not similar and/or identical.
Considering the decisions of this Court in the case of P.K. Roy
(supra) and Roop Lal (supra), the High Court has observed and
held that the equation of posts has to be determined by taking
into account the following factors:
(i) nature and duties of post;
(ii) responsibilities and powers exercised by officer holding a
post; extent of territorial or other charge held or
responsibilities discharged;
(iii) minimum qualifications, if any, prescribed for
recruitment to the post; and
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(iv) salary of the post.
6.3 Relying upon the aforesaid two decisions of this Court, the
High Court has dismissed the writ petitions preferred by the
appellants hereinUnion of India and has confirmed the judgment
and order passed by the learned Tribunal quashing and setting
the amended rules vide notification – G.O. No. 6 of 2015 equating
the post of Principal, Grade ‘A’ (Senior Scale) with that of the post
of JCIF. However, neither the learned Tribunal nor the High
Court has considered the relevant factors which were considered
while amending the rules and equating the two posts. The High
Court has also not considered the fact that the UPSC gave its
concurrence to the emended rules and only thereafter the rules
were amended and the posts were equated.
6.4 From the affidavitinreply filed on behalf of the UPSC before
the learned Tribunal in O.A. No. 814 of 2005, it appears that the
rules were amended after the concurrence of the UPSC and after
the draft rules were approved by the UPSC. From the affidavitinreply filed by the UPSC, it appears that the UPSC gave its
concurrence after due deliberation with the Government from
time to time. Relevant paragraphs of the affidavitinreply which
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are necessary for determination of the issue involved are as
under:
“5. That the proposal for framing of common
Recruitment Rules for the post of Joint Chief
Inspector of Factories and Principal, Group ‘A’ (Senior
Scale) in the scale of pay of Rs. 1000015200 under
the Labour Department of the Government of
Pondicherry in lieu of the existing Recruitment Rules
for the post of Joint Chief Inspector of Factories, was
received on 18th March 2003 (ANNEXURE RI). The
proposal was examined and the Government of
Pondicherry was requested to certify whether the
duties of both the posts (Joint Chief Inspector of
Factories and Principal, Group ‘A’ (Senior Scale)
match to merit framing of common Recruitment
Rules and whether the persons holding the post of
Principal will be able to discharge the duties of the
post of Joint Chief Inspector of Factories effectively
and vice versa. In this connection Commission’s
letter, dated 21.05.2003 (ANNEXURE RII) may be
referred to. It is most respectfully submitted that in
response to Commission’s letter referred to above, the
Government of Pondicherry furnished clarifications
vide their letter, dated 01.08.2003 (ANNEXURE RIII).
Subsequently, the Government of Pondicherry was
also requested to furnish the duties and
responsibilities attached to the post of Joint Chief
Inspector of Factories, vide Commission’s letter,
dated 23.10.2003 (ANNEXURE RIV). The duties and
responsibilities were furnished by the Government of
Pondicherry vide their letter, dated 29.10.2003
(ANNEXURE RIVA). It was found that the duties of
both the posts did not match. Accordingly, the
Government of Pondicherry was advised vide letter
dated 27.11.2003 (ANNEXURE RIVB) to explore the
possibility of filling the post by deputation. In reply,
the Government of Pondicherry informed vide their
letter, dated 09.02.2004 (ANNEXURE RV) that the
suggestion to explore the possibility of filling up the
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post of Joint Chief Inspector of Factories by
deputation, will not help them in ensuring the safety
and health of industrial workers.
6. It is most respectfully submitted that the
Government of Pondicherry, in their letter, dated
09.02.2004 referred to above, insisted upon having
common Recruitment Rules for the posts of Joint
Chief Inspector of Factories and Principal, Group ‘A’
(Senior Scale), while expressing that their intention
that these two posts are interchangeable, and both
the incumbents holding feeder posts of Inspector of
Factories and Principal, Group ‘A’ (Junior Scale) are
capable of discharging their duties of the post of
Joint Chief Inspector of Factories effectively. The
Pondicherry Government also stated that feeder post
for the promotional post of Principal (Junior Scale),
Inspector of Factories and Inspector of Boilers are
also interchangeable and that the Joint Chief
Inspector of Factories and Principal, Group ‘A’ (Senior
Scale) are the only higher posts available for the
lower cadre as promotional avenues. Therefore, the
post of Joint Chief Inspector of Factories cannot be
set a part for deputationists, as suggested by UPSC.
7. It is also most respectfully submitted that the
Government of Pondicherry, in their communication
referred to above, clearly stated that the intention is
for creating avenues of promotion to the cadre of
Inspector of Factories and Principal, Group ‘A’
(Junior Scale), Technical Officer and Training Officer
and the Government has also brought all these four
posts under one umbrella. The Government of
Pondicherry had stated that since these four posts
were brought under one umbrella, there will be no
difficulty in operating a common Recruitment Rules
for the posts of Joint Chief Inspector of Factories and
Principal, Group ‘A’ (Senior Scale) by keeping these
four posts as a feeder post. The Government of
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Pondicherry had also stated that having a common
Recruitment Rules will facilitate not only the rotation
of officers at frequent intervals for better
administration, but also will create promotional
avenues to the officers holding the feeder posts. The
Government of Pondicherry further emphasised that
such an action will also meet guidelines of the Chief
Vigilance Commission of India, New Delhi.
Subsequently, the case was also discussed by Joint
Secretary (Labour) with the concerned officers of
UPSC in the Commission on 24.05.2004 and the
representative of the Pondicherry Government was
requested to submit detailed comment with regard to
the requirement of having a common Recruitment
Rules again. The record of the discussion held on
24.05.2004 is annexed as (ANNEXURE RVI). Having
examined the proposal it was felt necessary to have a
clear view, particularly the details to corroborate the
assertion of the Pondicherry Government that there
is stagnation in the feeder grade. As such, the
Government of Pondicherry was requested to forward
a statement indicating the name of the incumbents
holding the posts of Inspector of Boilers, Inspector of
Factories, Technical Officer and Training Officer and
Principal, I.T.I. and also their date of regular
appointments in the respective grade. Commission’s
letter, dated 19.11.2004 (ANNEXURE RVII) may be
referred to. Finally, having examined the entire
proposal along with the details furnished by the
Government of Pondicherry, the Recruitment Rules
were concurred by the Commission upon insistence
of the Government of Pondicherry to have the
common Recruitment Rules in view of the following:
(i) That the feeder post of Principal (Junior
Grade) and Inspector of Factories are also
interchangeable.
(ii) That the feeder grade posts of Inspector of
Boilers, Inspector of Factories, Principal,
Group ‘B’, I.T.I., Technical Officer and
Training Officer could be provided better
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promotional avenues as some of the
incumbents holding these posts are
stagnating in their respective grade.
(iii) That it is necessary to have a common
Recruitment Rules, because the post of Joint
Chief Inspector of Factories is a sensitive
post and there is a need to rotate the officers
at frequent intervals so as to meet the
guidelines of the Central Vigilance
Commission. The Government of
Pondicherry had certified that there is no
impediment to have a common Recruitment
Rules for both the posts of Joint Chief
Inspector of Factories and Principal, Group
‘A’ (Senior Scale).”
6.5 From the aforesaid, it appears that the UPSC gave its
concurrence after having due deliberations and considering the
relevant factors and only thereafter the rules came to be
amended and the two posts in question came to be equated. In
the case of P.U. Joshi (supra) in paragraph 10, this Court has
observed and held as under:
“10. We have carefully considered the
submissions made on behalf of both parties.
Questions relating to the constitution, pattern,
nomenclature of posts, cadres, categories, their
creation/abolition, prescription of qualifications and
other conditions of service including avenues of
promotions and criteria to be fulfilled for such
promotions pertain to the field of policy is within the
exclusive discretion and jurisdiction of the State,
subject, of course, to the limitations or restrictions
envisaged in the Constitution of India and it is not for
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the statutory tribunals, at any rate, to direct the
Government to have a particular method of
recruitment or eligibility criteria or avenues of
promotion or impose itself by substituting its views
for that of the State. Similarly, it is well open and
within the competency of the State to change the
rules relating to a service and alter or amend and
vary by addition/substraction the qualifications,
eligibility criteria and other conditions of service
including avenues of promotion, from time to time, as
the administrative exigencies may need or
necessitate. Likewise, the State by appropriate rules
is entitled to amalgamate departments or bifurcate
departments into more and constitute different
categories of posts or cadres by undertaking further
classification, bifurcation or amalgamation as well as
reconstitute and restructure the pattern and
cadres/categories of service, as may be required from
time to time by abolishing the existing cadres/posts
and creating new cadres/posts. There is no right in
any employee of the State to claim that rules
governing conditions of his service should be forever
the same as the one when he entered service for all
purposes and except for ensuring or safeguarding
rights or benefits already earned, acquired or accrued
at a particular point of time, a government servant
has no right to challenge the authority of the State to
amend, alter and bring into force new rules relating
to even an existing service.”
6.6 Thus, when a conscious decision was taken by the UPSC
and the Government while amending rules and equating the two
posts after considering the pros and cons of the matter and
considering the relevant factors referred to and reproduced
hereinabove, being a policy decision, the Tribunal was not
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justified in quashing and setting aside the statutory rules.
Therefore, the High Court has committed a grave error in
dismissing the writ petition and confirming the judgment and
order passed by the learned Tribunal quashing and setting aside
the amended rules by notification – G.O. No. 6 of 2015 equating
the post of Principal, Grade ‘A’ (Senior Scale). Now, so far as the
reliance placed upon the decisions of this Court in the cases of
P.K. Roy (supra) and Roop Lal (supra) is concerned, on
considering the decisions, we are of the opinion that, in the facts
and circumstances of the case, those decisions shall not be
applicable to the facts of the case on hand. The decision in the
case of P.K. Roy (supra) related to administrative determination
of equivalence between different posts in the context of State reorganization and absorption of individuals in equivalent posts.
The decision in the case of Roop Lal (supra) related to absorption
of a SubInspector belonging to BSF in the Delhi Police when he
was serving on deputation, and period to be counted for seniority.
Therefore, on facts, the said decision shall not be applicable to
the facts of the case on hand.
Even otherwise, on considering the nature and duties of both the
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decisions, namely JCIF and Principal, Grade ‘A’ (Senior Scale), we
are of the opinion that the duties to be performed by JCIF and
Principal, Grade ‘A’ (Senior Scale) can be said to be identical
and/or similar in nature.
7 In view of the above and for the reasons stated above, we
are unable to agree with the view taken by the High Court
dismissing the writ petitions and confirming the judgment and
order passed by the learned Tribunal quashing and setting aside
the amended rules by notification – G.O. No. 6 of 2015 equating
the post of Principal, Grade ‘A’ (Senior Scale) with the post of
JCIF. The impugned judgment and order passed by the High
Court as well as the judgment and order passed by the learned
Tribunal deserve to be quashed and set aside.
7.1 In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court in Writ
Petition No. 44922 of 2006 arising out of the judgment and order
dated 04.07.2006 passed by the learned Tribunal in O.A. No. 814
of 2005 quashing and setting aside the recruitment rules issued
vide notification – G.O. No. 6 of 2015 equating the post of
25
Principal, Grade ‘A’ (Senior Scale) with that of JCIF, is hereby
quashed and set aside. The appeal arising out of Writ Petition
No. 44922 of 2006 is hereby allowed accordingly. No costs.
7.2 Now, so far as the impugned judgment and order passed by
the High Court in Writ Petition No. 44921 of 2006 arising out of
the judgment and order passed by the learned Tribunal dated
04.07.2006 in O.A. No. 218 of 2005 by which the Tribunal set
aside the order of transfer is concerned, the same stands
disposed of, as observed hereinabove. However, the liberty is
reserved in favour of respondent No. 1–original applicant to
challenge the order dated 18.08.2016 treating the period between
15.03.2005 till he attained the age of superannuation as diesnon, before an appropriate court/forum and as and when such
proceedings are initiated, the same may be considered in
accordance with law and on merits.
........................................J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
May 1, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITON
CIVIL APPEAL NOS. 59695970 OF 2009
Union of India & Ors. etc. etc. .. Appellants
Versus
S. Maadasamy and Anr. etc. etc. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. As both these appeals arise out of the impugned common
judgment and order passed by the High Court and are between
the same parties, the same are being disposed of by this common
judgment.
2. Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 29.10.2007 passed by the
High Court of Madras in Writ Petition Nos. 44921 and 44922 of
2
2006, by which the High Court has dismissed the said writ
petitions preferred by the appellantsUnion of India and others
and confirmed the judgment and order passed by the learned
Central Administrative Tribunal dated 04.07.2006 in O.A. No.
218 of 2005 and O.A. No. 814 of 2005, the Union of India and
othersoriginal writ petitioners before the High Court have
preferred the present appeals.
3. The facts leading to the present appeals in nutshell are as
under:
That respondent no. 1 hereinoriginal applicant initially joined
the services in the Government of Puducherry as a Craft
Instructor in the Labour Department on 03.11.1975 and was
appointed as the Group Instructor on regular basis. That,
thereafter he was promoted as Inspector of Factories on
27.09.1982 and as Principal, Group ‘A’ (Junior Scale) on regular
basis w.e.f. 25.08.1989. That, thereafter on 26.07.2001, he was
promoted as the Joint Chief Inspector of Factories (hereinafter
referred to as the “JCIF”) on regular basis. The promotion of
respondent No. 1original applicant was challenged by one Sri
P.S. Krishnamurthy, who was promoted as Principal, Group ‘A’
3
(Junior Scale) subsequent to the promotion of respondent No. 1
original applicant. On the representation made by the said Sri
P.S. Krishnamurthy, the Government initiated steps to convene a
review DPC, but the same was rejected by the UPSC. Thereafter,
respondent no. 1original applicant joined duty in the said post
on 26.07.2001. The said promotion was challenged by Sri P.S.
Krishnamurthy by way of O.A. No. 795 of 2001, but the same
was dismissed by the Central Administrative Tribunal (for short
‘Tribunal’) on 29.07.2001. According to the appellants, the
Government of Puducherry also sent a proposal to UPSC for
amendment of the recruitment rules equating the post of
Principal, ITI held by Sri P.S. Krishnamurthy with that of JCIF.
It appears that pursuant to the draft recruitment rules equating
the posts, respondent No. 1original applicant was transferred
from JCIF and posted as Principal, Group ‘A’ (Senior Scale) on
30.09.2003. It appears that, in the meantime, in the year 1998
the Government of Puducherry decided to create one post of
Principal (Senior Scale) (Rs.30004500/ later revised to
Rs.10,00015200/) in the Government ITI at Karaikal.
According to the Department, the same was pursuant to the
order of the Tribunal, based on the number of students at ITI,
4
Karaikal being more than 400. The same was done in
anticipation of the approval of the Government of India, by
keeping one post of Principal (Junior Scale) in abeyance. That
the Government of India, by order dated 19.10.2000 sanctioned
the proposal for creation of the post of Principal, Group ‘A’
(Senior Scale) subject to the condition that one post of Principal
(Junior Scale) which was kept in abeyance, should be abolished.
That, thereafter respondent No. 1 working as Principal (Junior
Scale) in ITI, Puducherry was promoted to the post of JCIF vide
order dated 26.07.2001. That, thereafter on 17.09.2001,
pursuant to the approval received from the Government of India
for the creation of one post of Principal (Senior Scale), one post of
Principal (Junior Scale) was abolished. It appears that pursuant
to the draft recruitment rules equating the posts of Principal, ITI
and the JCIF, respondent No.1original applicant was transferred
from JCIF and posted as Principal, Group ‘A’ (Senior Scale) on
30.09.2003. That the said order was challenged by respondent
No. 1 hereinoriginal applicant before the learned Tribunal by
way of O.A. No. 869 of 2003. That the said O.A. came to be
allowed by the Tribunal vide its order dated 06.01.2004. The
writ petition challenging the judgment and order passed by the
5
learned Tribunal came to be dismissed by the High Court on
16.02.2005. At this stage, it is required to be noted that while
quashing and setting aside the order dated 30.09.2003
transferring respondent No. 1 from JCIF to Principal, Group ‘A”
(Senior Scale), the learned Tribunal held that reliance placed on
draft recruitment rules to support the transfer, cannot be
sustained, as the mere approval of the Lt. Governor is not enough
and the consultation with and approval of the UPSC is required
and thereafter, it has to be notified. The Tribunal also held the
transfer as mala fide and passed with ulterior motive. The
Tribunal also observed and held that after the rules are approved
by UPSC and notified, the Government would be at liberty to
make the transfer of the original applicant.
3.1 It appears that, thereafter the notification being G.O. No. 6
dated 08.03.2005 to amend the recruitment rules relating to the
post of JCIF/Chief Principal, Group ‘A’ (Senior Scale) was
published on 15.03.2005. Simultaneously, on the same date,
respondent No. 1 hereinoriginal applicant came to be transferred
and posted as Principal, Group ‘A’ (Senior Scale) to the
Government ITI, Karaikal from the post of JCIF, Puducherry.
6
The said order of transfer came to be challenged by respondent
No. 1original applicant before the learned Tribunal by way of
O.A. No. 218 of 2005. That, by way of O.A. No. 814 of 2005,
respondent No. 1original applicant challenged the revised
recruitment rules introduced by G.O. No. 6 dated 08.03.2005,
equating the two posts, namely the post of JCIF and the post of
Principal Group ‘A” (Senior Scale) and also to set aside the said
amended recruitment rules.
3.2 That the learned Tribunal quashed and set aside the order
of transfer dated 15.03.2005 stating that the same was mala fide
and passed with an ulterior motive. The learned Tribunal also
allowed O.A. No. 814 of 2005 and held that the amended rules
are arbitrary and violative of Articles 14 and 16 of the
Constitution of India. According to the learned Tribunal, the
purpose for bringing the amended rules was not germane, but
was directed only to achieve a different purpose.
3.3 Feeling aggrieved and dissatisfied with the order passed by
the learned Tribunal in O.A. No. 218 of 2005 quashing and
setting aside the order of transfer dated 15.03.2005 and the
judgment and order passed in O.A. No. 814 of 2005 quashing
7
and setting aside the amended recruitment rules equating the
post of Principal Group ‘A” (Senior Scale) with that of the post of
JCIF, the appellants hereinUnion of India and others preferred
writ petitions before the High Court. That, by the impugned
common judgment and order, the High Court has dismissed both
the writ petitions and confirmed the judgment and order passed
by the learned Tribunal quashing and setting aside the order of
transfer dated 15.03.2005 and setting aside the amended rules
equating the post of Principal Group ‘A” (Senior Scale) with that
of the post of JCIF. That, by the impugned judgment and order,
the High Court has dismissed both the writ petitions. Hence, the
present appeals challenging the impugned common judgment
and order passed by the High Court in Writ Petition Nos. 44921
and 44922 of 2006 confirming the judgment and order passed by
the learned Tribunal in O.A. No. 218 of 2015 and O.A. No. 814 of
2005 dated 04.07.2006.
3.4 Now, so far as the challenge to the impugned common
judgment and order passed by the High Court dismissing the writ
petition and confirming the judgment and order passed by the
learned Tribunal in O.A. No. 218 of 2005, by which the learned
8
Tribunal set aside the order of transfer dated 15.03.2005 is
concerned, it is the admitted position that in view of the
subsequent development and respondent No. 1 hereinoriginal
applicant has retired on attaining the age of superannuation, as
such, the challenge to the order passed by the High Court
confirming the order passed by the learned Tribunal quashing
and setting aside the order of transfer dated 15.03.2005 has
become infructuous/academic. Even otherwise, there are
concurrent findings given by both, the learned Tribunal as well
as the High Court holding that the order of transfer was mala
fide and with the oblique motive. Therefore, the appeal
challenging the impugned judgment and order passed by the
High Court dismissing the writ petition and confirming the
judgment and order passed by the learned Tribunal in O.A. No.
218 of 2005 stands disposed of as infructuous/academic.
3.5 However, the question still remains how the period from the
order of transfer dated 15.03.2005 till respondent No. 1original
applicant attained the age of superannuation is to be
treated/considered. It appears that at the time when respondent
No. 1original applicant attained the age of superannuation, he
9
has been paid the retirement benefits and the
pension/pensionary benefits vide order dated 18.08.2016 and the
period from 15.03.2005 till he attained the age of superannuation
is treated as diesnon and he has been paid the
pension/pensionary benefits accordingly. Therefore, it will be
open for respondent No. 1original applicant to challenge the
order dated 18.08.2016 treating the period between 15.03.2005
till he attained the age of superannuation as diesnon, before the
appropriate Court/Forum and as and when such proceedings are
initiated, the same may be considered in accordance with law
and on its own merits.
4. In view of the above, now the challenge to the impugned
judgment and order passed by the High Court confirming the
order passed by the learned Tribunal in O.A. No. 814 of 2005 by
which the amended recruitment rules vide notification G.O. No.
6 dated 08.03.2005 equating the post of Principal, Grade ‘A’
(Senior Scale) with that of JCIF survives.
4.1 Shri A. Mariarputham, learned Senior Advocate has
appeared on behalf of the appellants. Learned counsel appearing
10
on behalf of the appellants has vehemently submitted that, as
such, the challenge to the amended rules by respondent No. 1
original applicant before the learned Tribunal was limited to
equating the two posts and not the entirety of the rules. It is
further submitted by the learned counsel appearing on behalf of
the appellants that, even otherwise, in the facts and
circumstances of the case, both, the learned Tribunal as well as
the High Court have committed grave error in quashing and
setting aside the amended rules equating the post of Principal,
Group ‘A’ (Senior Scale) with that of the post of JCIF. It is
submitted that the educational and other qualifications
prescribed for the two posts in question, namely JCIF and
Principal, Grade ‘A’ (Senior Scale) are identical; that the feeder
cadre/posts for both the posts are also identical and having
common rules for the two posts. It is submitted that, therefore,
in that view of the matter, the equations of two posts cannot be
said to be badinlaw. It is further submitted by the learned
counsel appearing on behalf of the appellants that even in the
lower cadres, the pattern of having the same rules for a group of
posts, where the feeder cadres are the same, was in existence.
In support of his above submission, he has relied upon the 1982
11
Rules, governing the post of Inspector of Factories, Principal and
Technical officers. It is submitted that a person posted as
Inspector of Factories is transferable as Principal and viseversa
etc.
4.2 It is further submitted by the learned counsel appearing on
behalf of the appellants that both, the learned Tribunal as well as
the High Court have materially erred in quashing and setting
aside the amended rules equating the aforesaid two posts, on the
ground that the duties and responsibilities with respect to the
two posts are not similar/identical. It is submitted that there is
no requirement in law that all the posts clubbed together should
be identical in respect of duties and responsibilities and
functions. It is submitted that by the very nature of things, it
will not be identical. It is submitted that what is to be seen is
whether the person is capable/competent to discharge the
functions of both the posts. It is submitted that having regard to
the identical, educational and other qualifications prescribed and
coming from the feeder cadres common to both, they are
competent to man both the posts and capable of discharging the
functions of both the posts. It is submitted that, in the present
12
case and in the case of respondent No. 1 himself, in fact, his
initial appointed was as a craft instructor; later he became the
Inspector of Factories and thereafter he got promoted as Principal
(Junior Scale) and thereafter got promoted as JCIF.
4.3 It is further submitted by the learned senior counsel
appearing on behalf of the appellants that, even otherwise, the
principles laid down by this Court for an administrative
determination as to whether two posts are equivalent in nature
for different purposes such as absorption, counting the length of
service for seniority, cannot be invoked to strike down a
legislative exercise of rule making under the proviso to Article
309 of the Constitution of India which has been held to be
statutory and legislative in character.
4.4 It is further submitted by the learned counsel appearing on
behalf of the appellants that, therefore, on facts the decision of
this Court in the case of Union of India v. P.K. Roy (1968) 2
SCR 186 as well as the decision in the case of SubInspector
Roop Lal v. Lt. Governor (2000) 1 SCC 644, relied upon by the
High Court shall not be applicable to the facts of the case on
13
hand, more particularly, when the amended rules equating the
posts were statutory and legislative in character.
4.5 It is further submitted by the learned counsel appearing on
behalf of the appellants that, even otherwise, on facts, both, the
learned Tribunal and the High Court have committed a grave
error in quashing and setting aside the amended rules equating
the post of Principal, Grade ‘A’ (Senior Scale) with that of the post
of JCIF, inasmuch as the amended rules were approved by the
UPSC and the rules were amended in consultation with the UPSC
and after elaborate discussions thereafter the UPSC gave its
concurrence/approval and thereafter the rules were amended
equating the two posts.
4.6 Relying upon the decision of this Court in the case of P.U.
Joshi v. Accountant General, Ahmedabad (2003) 2 SCC 632, it
is vehemently submitted by the learned counsel appearing on
behalf of the appellants that, as such, it is ultimately for the
Government to take an appropriate decision on equation of posts.
It is submitted that questions relating to the constitution,
pattern, nomenclature of posts, cadres, categories and other
conditions of service including avenues of promotions and criteria
14
to be fulfilled for such promotions pertain to the field of Policy
and within the exclusive discretion and jurisdiction of the State.
It is submitted that, therefore, the learned Tribunal and the High
Court have committed a grave error in interfering with such a
policy decision/decision of the Government to equate two posts,
which were after due deliberations and in consultation with the
UPSC.
4.7 Making the above submissions, it is prayed to allow the
present appeals and quash and set aside the impugned judgment
and order passed by the High Court and the learned Tribunal
insofar as quashing and setting aside the notification – G.O. No.
6 dated 18.03.2005 by which the post of Principal, Grade ‘A’
(Senior Scale) was equated with the post of JCIF.
5. Shri Pramod Swarup, learned Senior Advocate appearing on
behalf of respondent No. 1 has supported the impugned
judgment and order passed by the High Court. It is submitted
that the impugned judgment and order passed by the High Court
upholding the judgment and order passed by the learned
Tribunal quashing and setting aside the amended rules equating
15
the post of Principal, Grade ‘A’ (Senior Scale) with that of the post
of JCIF is absolutely just and proper and considering the
decisions of this Court in P. K. Roy (supra) and Roop Lal
(supra). It is submitted that as it was found that the nature of
duties; responsibilities and powers exercised by holding the two
posts are not similar and identical and, therefore, the High Court
was justified in confirming the judgment and order passed by the
learned Tribunal quashing and setting aside the amended rules.
Therefore, it is prayed to dismiss the present appeals.
6. Heard learned counsel appearing on behalf of the respective
parties at length.
6.1 As observed hereinabove, now in the present appeals, the
challenge to the impugned judgment and order passed by the
High Court dismissing the writ petition and confirming the
judgment and order passed by the learned Tribunal in O.A. No.
814 of 2005 quashing and setting aside the amended rules
equating the post of Principal, Grade ‘A’ (Senior Scale) with that
of JCIF survives. Therefore, the only question which is now
required to be considered by this Court is whether, in the facts
and circumstances of the case, the High Court is justified in
16
dismissing the writ petition and confirming the order passed by
the learned Tribunal quashing and setting aside the amended
rules by notification – G.O. No. 6 of 2015 dated 08.03.2015
equating the post of Principal, Grade ‘A’ (Senior Scale) with that
of the post of JCIF?
6.2 From the impugned judgment and order passed by the High
Court, it appears that the High Court has dismissed the writ
petition, confirming the judgment and order passed by the
learned Tribunal quashing and setting aside the amended rules
equating the post of Principal, Grade ‘A’ (Senior Scale) with the
post of JCIF mainly on the ground that the nature of duties of
both the posts, responsibilities and powers exercised by the
officers holding the posts are not similar and/or identical.
Considering the decisions of this Court in the case of P.K. Roy
(supra) and Roop Lal (supra), the High Court has observed and
held that the equation of posts has to be determined by taking
into account the following factors:
(i) nature and duties of post;
(ii) responsibilities and powers exercised by officer holding a
post; extent of territorial or other charge held or
responsibilities discharged;
(iii) minimum qualifications, if any, prescribed for
recruitment to the post; and
17
(iv) salary of the post.
6.3 Relying upon the aforesaid two decisions of this Court, the
High Court has dismissed the writ petitions preferred by the
appellants hereinUnion of India and has confirmed the judgment
and order passed by the learned Tribunal quashing and setting
the amended rules vide notification – G.O. No. 6 of 2015 equating
the post of Principal, Grade ‘A’ (Senior Scale) with that of the post
of JCIF. However, neither the learned Tribunal nor the High
Court has considered the relevant factors which were considered
while amending the rules and equating the two posts. The High
Court has also not considered the fact that the UPSC gave its
concurrence to the emended rules and only thereafter the rules
were amended and the posts were equated.
6.4 From the affidavitinreply filed on behalf of the UPSC before
the learned Tribunal in O.A. No. 814 of 2005, it appears that the
rules were amended after the concurrence of the UPSC and after
the draft rules were approved by the UPSC. From the affidavitinreply filed by the UPSC, it appears that the UPSC gave its
concurrence after due deliberation with the Government from
time to time. Relevant paragraphs of the affidavitinreply which
18
are necessary for determination of the issue involved are as
under:
“5. That the proposal for framing of common
Recruitment Rules for the post of Joint Chief
Inspector of Factories and Principal, Group ‘A’ (Senior
Scale) in the scale of pay of Rs. 1000015200 under
the Labour Department of the Government of
Pondicherry in lieu of the existing Recruitment Rules
for the post of Joint Chief Inspector of Factories, was
received on 18th March 2003 (ANNEXURE RI). The
proposal was examined and the Government of
Pondicherry was requested to certify whether the
duties of both the posts (Joint Chief Inspector of
Factories and Principal, Group ‘A’ (Senior Scale)
match to merit framing of common Recruitment
Rules and whether the persons holding the post of
Principal will be able to discharge the duties of the
post of Joint Chief Inspector of Factories effectively
and vice versa. In this connection Commission’s
letter, dated 21.05.2003 (ANNEXURE RII) may be
referred to. It is most respectfully submitted that in
response to Commission’s letter referred to above, the
Government of Pondicherry furnished clarifications
vide their letter, dated 01.08.2003 (ANNEXURE RIII).
Subsequently, the Government of Pondicherry was
also requested to furnish the duties and
responsibilities attached to the post of Joint Chief
Inspector of Factories, vide Commission’s letter,
dated 23.10.2003 (ANNEXURE RIV). The duties and
responsibilities were furnished by the Government of
Pondicherry vide their letter, dated 29.10.2003
(ANNEXURE RIVA). It was found that the duties of
both the posts did not match. Accordingly, the
Government of Pondicherry was advised vide letter
dated 27.11.2003 (ANNEXURE RIVB) to explore the
possibility of filling the post by deputation. In reply,
the Government of Pondicherry informed vide their
letter, dated 09.02.2004 (ANNEXURE RV) that the
suggestion to explore the possibility of filling up the
19
post of Joint Chief Inspector of Factories by
deputation, will not help them in ensuring the safety
and health of industrial workers.
6. It is most respectfully submitted that the
Government of Pondicherry, in their letter, dated
09.02.2004 referred to above, insisted upon having
common Recruitment Rules for the posts of Joint
Chief Inspector of Factories and Principal, Group ‘A’
(Senior Scale), while expressing that their intention
that these two posts are interchangeable, and both
the incumbents holding feeder posts of Inspector of
Factories and Principal, Group ‘A’ (Junior Scale) are
capable of discharging their duties of the post of
Joint Chief Inspector of Factories effectively. The
Pondicherry Government also stated that feeder post
for the promotional post of Principal (Junior Scale),
Inspector of Factories and Inspector of Boilers are
also interchangeable and that the Joint Chief
Inspector of Factories and Principal, Group ‘A’ (Senior
Scale) are the only higher posts available for the
lower cadre as promotional avenues. Therefore, the
post of Joint Chief Inspector of Factories cannot be
set a part for deputationists, as suggested by UPSC.
7. It is also most respectfully submitted that the
Government of Pondicherry, in their communication
referred to above, clearly stated that the intention is
for creating avenues of promotion to the cadre of
Inspector of Factories and Principal, Group ‘A’
(Junior Scale), Technical Officer and Training Officer
and the Government has also brought all these four
posts under one umbrella. The Government of
Pondicherry had stated that since these four posts
were brought under one umbrella, there will be no
difficulty in operating a common Recruitment Rules
for the posts of Joint Chief Inspector of Factories and
Principal, Group ‘A’ (Senior Scale) by keeping these
four posts as a feeder post. The Government of
20
Pondicherry had also stated that having a common
Recruitment Rules will facilitate not only the rotation
of officers at frequent intervals for better
administration, but also will create promotional
avenues to the officers holding the feeder posts. The
Government of Pondicherry further emphasised that
such an action will also meet guidelines of the Chief
Vigilance Commission of India, New Delhi.
Subsequently, the case was also discussed by Joint
Secretary (Labour) with the concerned officers of
UPSC in the Commission on 24.05.2004 and the
representative of the Pondicherry Government was
requested to submit detailed comment with regard to
the requirement of having a common Recruitment
Rules again. The record of the discussion held on
24.05.2004 is annexed as (ANNEXURE RVI). Having
examined the proposal it was felt necessary to have a
clear view, particularly the details to corroborate the
assertion of the Pondicherry Government that there
is stagnation in the feeder grade. As such, the
Government of Pondicherry was requested to forward
a statement indicating the name of the incumbents
holding the posts of Inspector of Boilers, Inspector of
Factories, Technical Officer and Training Officer and
Principal, I.T.I. and also their date of regular
appointments in the respective grade. Commission’s
letter, dated 19.11.2004 (ANNEXURE RVII) may be
referred to. Finally, having examined the entire
proposal along with the details furnished by the
Government of Pondicherry, the Recruitment Rules
were concurred by the Commission upon insistence
of the Government of Pondicherry to have the
common Recruitment Rules in view of the following:
(i) That the feeder post of Principal (Junior
Grade) and Inspector of Factories are also
interchangeable.
(ii) That the feeder grade posts of Inspector of
Boilers, Inspector of Factories, Principal,
Group ‘B’, I.T.I., Technical Officer and
Training Officer could be provided better
21
promotional avenues as some of the
incumbents holding these posts are
stagnating in their respective grade.
(iii) That it is necessary to have a common
Recruitment Rules, because the post of Joint
Chief Inspector of Factories is a sensitive
post and there is a need to rotate the officers
at frequent intervals so as to meet the
guidelines of the Central Vigilance
Commission. The Government of
Pondicherry had certified that there is no
impediment to have a common Recruitment
Rules for both the posts of Joint Chief
Inspector of Factories and Principal, Group
‘A’ (Senior Scale).”
6.5 From the aforesaid, it appears that the UPSC gave its
concurrence after having due deliberations and considering the
relevant factors and only thereafter the rules came to be
amended and the two posts in question came to be equated. In
the case of P.U. Joshi (supra) in paragraph 10, this Court has
observed and held as under:
“10. We have carefully considered the
submissions made on behalf of both parties.
Questions relating to the constitution, pattern,
nomenclature of posts, cadres, categories, their
creation/abolition, prescription of qualifications and
other conditions of service including avenues of
promotions and criteria to be fulfilled for such
promotions pertain to the field of policy is within the
exclusive discretion and jurisdiction of the State,
subject, of course, to the limitations or restrictions
envisaged in the Constitution of India and it is not for
22
the statutory tribunals, at any rate, to direct the
Government to have a particular method of
recruitment or eligibility criteria or avenues of
promotion or impose itself by substituting its views
for that of the State. Similarly, it is well open and
within the competency of the State to change the
rules relating to a service and alter or amend and
vary by addition/substraction the qualifications,
eligibility criteria and other conditions of service
including avenues of promotion, from time to time, as
the administrative exigencies may need or
necessitate. Likewise, the State by appropriate rules
is entitled to amalgamate departments or bifurcate
departments into more and constitute different
categories of posts or cadres by undertaking further
classification, bifurcation or amalgamation as well as
reconstitute and restructure the pattern and
cadres/categories of service, as may be required from
time to time by abolishing the existing cadres/posts
and creating new cadres/posts. There is no right in
any employee of the State to claim that rules
governing conditions of his service should be forever
the same as the one when he entered service for all
purposes and except for ensuring or safeguarding
rights or benefits already earned, acquired or accrued
at a particular point of time, a government servant
has no right to challenge the authority of the State to
amend, alter and bring into force new rules relating
to even an existing service.”
6.6 Thus, when a conscious decision was taken by the UPSC
and the Government while amending rules and equating the two
posts after considering the pros and cons of the matter and
considering the relevant factors referred to and reproduced
hereinabove, being a policy decision, the Tribunal was not
23
justified in quashing and setting aside the statutory rules.
Therefore, the High Court has committed a grave error in
dismissing the writ petition and confirming the judgment and
order passed by the learned Tribunal quashing and setting aside
the amended rules by notification – G.O. No. 6 of 2015 equating
the post of Principal, Grade ‘A’ (Senior Scale). Now, so far as the
reliance placed upon the decisions of this Court in the cases of
P.K. Roy (supra) and Roop Lal (supra) is concerned, on
considering the decisions, we are of the opinion that, in the facts
and circumstances of the case, those decisions shall not be
applicable to the facts of the case on hand. The decision in the
case of P.K. Roy (supra) related to administrative determination
of equivalence between different posts in the context of State reorganization and absorption of individuals in equivalent posts.
The decision in the case of Roop Lal (supra) related to absorption
of a SubInspector belonging to BSF in the Delhi Police when he
was serving on deputation, and period to be counted for seniority.
Therefore, on facts, the said decision shall not be applicable to
the facts of the case on hand.
Even otherwise, on considering the nature and duties of both the
24
decisions, namely JCIF and Principal, Grade ‘A’ (Senior Scale), we
are of the opinion that the duties to be performed by JCIF and
Principal, Grade ‘A’ (Senior Scale) can be said to be identical
and/or similar in nature.
7 In view of the above and for the reasons stated above, we
are unable to agree with the view taken by the High Court
dismissing the writ petitions and confirming the judgment and
order passed by the learned Tribunal quashing and setting aside
the amended rules by notification – G.O. No. 6 of 2015 equating
the post of Principal, Grade ‘A’ (Senior Scale) with the post of
JCIF. The impugned judgment and order passed by the High
Court as well as the judgment and order passed by the learned
Tribunal deserve to be quashed and set aside.
7.1 In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court in Writ
Petition No. 44922 of 2006 arising out of the judgment and order
dated 04.07.2006 passed by the learned Tribunal in O.A. No. 814
of 2005 quashing and setting aside the recruitment rules issued
vide notification – G.O. No. 6 of 2015 equating the post of
25
Principal, Grade ‘A’ (Senior Scale) with that of JCIF, is hereby
quashed and set aside. The appeal arising out of Writ Petition
No. 44922 of 2006 is hereby allowed accordingly. No costs.
7.2 Now, so far as the impugned judgment and order passed by
the High Court in Writ Petition No. 44921 of 2006 arising out of
the judgment and order passed by the learned Tribunal dated
04.07.2006 in O.A. No. 218 of 2005 by which the Tribunal set
aside the order of transfer is concerned, the same stands
disposed of, as observed hereinabove. However, the liberty is
reserved in favour of respondent No. 1–original applicant to
challenge the order dated 18.08.2016 treating the period between
15.03.2005 till he attained the age of superannuation as diesnon, before an appropriate court/forum and as and when such
proceedings are initiated, the same may be considered in
accordance with law and on merits.
........................................J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
May 1, 2019.
