G GOPALA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) in these petitions the petitioners who are holding the post either of the first division clerks or of the second division clerks have challenged the government order dated 21-4-1982 in law 148 lac 79 amalgamating the post of copyist-examiners grade-i with the post of first division clerks and the, post of copyists with the post of second division clerks. The impugned order reads as follows: "law and parliamentary affairs secretariat. Amalgamation of the posts of copyist examiners grade-i with first division clerks and copyists with second division clerks in Karnataka subordinate courts of the judicial department. Read: correspondence resting with the letter No. Roc/2760/lca i/70, dated 19th february, 1982 of the registrar, High Court of karnataka, Bangalore. Preamble: the Mysore pay commission 1966-68 made the following recommendations in para 65.6 of chapter 65 of the report:- (1) copyist-examiners in all courts may be in the first division clerical cadre; (2) copyists may be included in the cadre of second division clerks and promoted as copyist-examiners in their turn on the basis of seniority-cum- merit; and (3) there need not be a separate cadre for copyist-examiners. The recommendations of the commission has been duly examined. There is no difficulty in the merger of the posts of copyist-examiners gradc-i with first division clerks and copyists with second division clerks as no special qualification like a pass in typewriting examination or any other qualification has been prescribed to any of these posts. Any second division clerk can accomplish the duties of copyist and a first division clerk can perform the work of copyist-examiner grade-i. Moreover posts of copyist-examiner grade-i and first division clerk and the posts of copyist and second division clerk carry an identical scale of pay of Rs. 630-1,200 and Rs. 490-950 respectively. It is therefore necessary to merge the cadre of copyist-examiners grade-i with that of first division clerks and designate the former as first division clerks and copyists with that of second division clerks and designate the copyists as second division clerks. Further government have also decided in principle to amalgamate the posts carrying identical scales of pay to avoid multiplicity of categories of posts, with due regard to the nature of duties attached to each post. "order No. Law 148 lac 79, Bangalore, dated 21st april, 1982 government hereby directs that:- (i) the cadre of copyist-examiners grade i shall be merged with the cadre of first division clerks and all persons in the cadre of copyist-examiners grade-i immediately prior to this order shall, along with the persons in the cadre of first division clerks be the members of the cadre of first division clerks and their seniority shall be determined with reference to the length of their continuous service in the respective cadres so however seniority inter se'among persons in the same cadre being maintained; and (ii) the cadre of copyists shall be merged with the cadre of second division clerks and all persons in the cadre of copyists immediately prior to this order shall along with persons in the cadre of second division clerks become members of the cadre of second division clerks and their seniority shall be determined with reference to the length of their continuous service in the respective cadres, so however seniority inter se among persons in the same cadre being maintained. By order and in the name of the governor of kamataka sd/- s.k. ramadevamma, under secretary to govt., department of law and parliamentary affairs administration." the main grounds of attack arc as follows: (i) whatever may be the purpose or the object, the order under challenge is violative of article 309 of the Constitution of India read with article 14(a). As far as the recruitment to the post of second division clerks and to the post of first division clerks and the promotion to the next higher posts arc concerned, the same is governed by the Provisions of the Karnataka subordinate courts (ministerial and other posts) (recruitment) rules, 1977. The said rules prescribe the method of recruitment and promotion of cash clerks, stenographers, etc. When such rules are existing, according to the learned counsel for the petitioners, the same cannot be nullified by an executive order as has been now done by the government. (ii) there is no rationale for the government to pass the impugned order in the year 1982 on the basis of the suggestions and recommendations in the pay commission report which was made in the year 1966-68. No reasons were assigned for implementing the recommendations made in the pay commission report in 'the year 19s2 though the report was made during the year 1966-68. According to the learned counsel for the petitioners the cadres, viz., copyist-examiners gradc-i and the first division clerks, the nature of their duties, avenues of promotion, etc. Arc altogether different. Likewise, is in the case of the second division clerks and the copyists. In the, case of the second division clerks and of the first division clerks, one can hope to reach the post of cash clerks or sheristcdar if he passes the departmental tests. Whereas, copyist-examiner grade-i, as per the 1977 rules, had no chance of reaching the post of cash clerk or its equivalent post. Therefore, by virtue of the impugned order uncquals are made equals which is violalive of article 14 of the Constitution of india. Further, in view of the order under challenge some of the petitioners who were holding the post of first division clerks will be now deprived of their promotions which were given earlier or further promotions and there is every apprehension for them that those who came from the post of copyist examiner gradc-1 will be placed above them in seniority. For these reasons, the learned counsel for the petitioners submit that the impugned order which is extracted above may be quashed. The learned counsel for the petitioners also rely upon the decisions of the Supreme Court in support of their contention that when rules regarding recruitment and promotion are existing, there cannot be an order either in executive nature or in administrative nature which almost amounts to annul such rules. The authorities relied upon by the learned counsel for the petitioners are (i) AIR 1972 SC 1546, slate of haryana v shamsher jang slniklii and (ii) AIR 1987 SC 1676, p.d. aggarwal and others v state of U.P. and others. The Supreme Court held in sliamsher jang shukla's case AIR 1972 SC 1546 thus: "it may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the secretariat. The first question arising for decision is whether the government was competent to add by means of administrative instructions to the qualifications prescribed under the rules framed under article 309. The high court and the courts below have come to the conclusion that the government was incompetent to do so. This court has ruled in sam ram sharma v state of rajasllian,(l968)l scr 111 : AIR 1967 SC 1910 that while the government cannot amend or supersede the statutory rules by administrative instructions, if the rules arc silent on any particular point, the government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we arc concerned, so far as relate to the clerks in the secretariat amend or after the conditions of service prescribed by the, rules framed under article 309. Undoubtedly the instructions issued by the government add to those qualifications. By adding to the qualifications already prescribed by the rules, the government has really altered the existing conditions of service. The instructions issued by the government undoubtedly affect the promotion of concerned officials and therefore they relate to their conditions of service. The government is not competent to alter the rules framed under article 309 by means of administrative instructions. We are unable to agree with the contention of the state that by issuing the instructions in question, the government had merely filled up a gap in the rules. The rules can be implemented without any difficult. We see no gap in the rules." in the case of aggarwal the Supreme Court held as follows: "the office memorandum dated December 7, 1961 which purports to amend the united provinces service of engineers (buildings and roads branch) class ii rules, 1936 in our opinion cannot override, amend or supersede slalutory rules. This memorandum is nothing but an administrative order or instruction and as such it cannot amend or supersede the statutory rules by adding something therein as has been observed by this court in sant ram sharma v state of rajasthan, (1967)1 scr 111 : AIR 1967 SC 1910. Moreover the benefits that have been conferred on the temporary assistant engineers who have become members of the service after being selected by the public service commission in accordance with the service rules are entitled to have their seniority reckoned in accordance with the Provisions of Rule 23 as it was then, from the date of their becoming member of the service, and this cannot be taken away by giving retrospective effect to the rules of 1969 and 1971 as it is arbitrary, irrational and not reasonable."

(2.) as against these contentions, it was argued that in view of the recommendations made by the pay commission taking into consideration the nature of work and the pay-scales of the first division clerks and the copyist-examiners grade-i and the second division clerks and the copyists (the pay-scale of the first division clerks and of the copyist-examiners grade-i arc one and the same. Likewise, the pay-scales of the second division clerks and of the copyists arc also same), the government thought it fit to amalgamate the cadre of copyist-examiner gradc-i with that of the first division clerks and the cadre of copyists with that of the second division clerks following the 1977 rules of recruitment. The said rules came to be made in the interest of both groups. Therefore, the said rules are not violative of article 14 or 309 of the constitution. When amalgamation, merger or integration is made, in its process, of course, some inconvenience or hardship may be caused to some of the officials; but, definitely such amalgamation, merger or integration cannot be equaled to an act of discrimination, ultra vires or unconstitutional.

(3.) after hearing both sides, I am of the view that the order under challenge is inno way ultra vires or unconstitutional. It is not in dispute that almost the nature of work, pay-scales, etc. Of the 2 groups, viz., (i) first division clerks and copyist-examiners grade-i and (ii) second division clerks and copyists, are one and the same. To rationalise and to see that promotional avenues arc also made for those serving in the cadres of copyist-examiners grade-i and copyists, the order under challenge came to be passed. No doubt, when rules arc existing prescribing the mode of recruitment and promotion, the same cannot be altered by an administrative order. That apart, an act of legislation cannot be superseded or any attempt cannot be made to undo things by an executive or administrative order as it is a clear case of violation of article 309 of the constitution. This has been clearly explained by the Supreme Court in the decisions cited supra. But this is a general rule. It docs not mean that the government is completely precluded from making any Order, if such an order is not violative of article 14 of the Constitution or in no way affects or alters the service conditions of the employees. It is settled that even if rules arc framed under article 309 of the Constitution of india, nothing debars or prevents the government to fill up the gaps by administrative instructions on matters in respect of which rules are silent. In the instant case, the gap is non-making of avenues for promotion to those who are working in the cadre of copyist-examiners gradc-i to the, next higher cadre, though the nature of work, pay-scales, etc. Of copyist-examiner gradc-i arc similar to those of first division clerks. The order under challenge came to be passed to see that the grievance of these 2 cadres is met and also in the interest of both the groups. Since it is not shown except submitting that by merger or amalgamation it is treated unequals as equals and thus resulted in discrimination, this court cannot substitute its view with the view already taken in the order extracted above. Secondly, it is not shown how the merger or amalgamation affects the service conditions of any one of the employees of the cadres of the first division clerks or the second division clerks that too when it is not spelled out as far as the seniority and promotion are concerned. Amalgamation or merger cannot be said as one relating to change of cadre. But it is an act of the government to rationalise the class and to streamline its administration. In fact the Supreme Court dealing with the scope of alteration due to amalgamation has held in reserve bank of india, Bombay v c. T. Diglie and others, AIR 1981 SC 1699 thus: "alteration of the conditions of eligibility governing employees belonging to a particular cadre cannot amount to changing the conditions of service of employees who belonged to another cadre, assuming that the said conditions were conditions of service. The changes introduced in respect of condition of eligibility may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but it cannot be said that this would amount to changing their conditions of service. Further, it is well settled that a Rule which affects the promotion of a person relates to his conditions of service but this is not so if what is affected is a chance of promotion only." in the said decision there is a reference to the earlier decision of the Supreme Court in reserve bank of India v n.c. paliwal, AIR 1976 SC 2345 which in turn had followed the earlier decision in mohd. Shujat ali v union of india, AIR 1974 SC 1631. What the Supreme Court has held in dighe's case AIR 1 981 SC 1699 is as follows: "having reached this conclusion we should have sent the matter back to the national tribunal for ascertaining the scope of the dispute referred to it for adjudication, if the assumption were correct that the alterations in the promotional scheme introduced by circular No. 6 amounted to changing the conditions of service of the complainants; if not, remitting the matter to the tribunal will be unnecessary. What circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test. If they passed the test, they would get into the panel along with employees belonging to the clerical cadre who also had passed the test. Vacancies in the posts of staff officer grade-a are filled by recruiting employees from the panel. The panel, it appears from the award, is a permanent one. How those who come out successful in the test arc to be fitted in the panel has been staled earlier. The panel is made up of employees belonging to different cadres. It is difficult to see how alteration of the conditions of eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged to another cadre, assuming for the present that the said conditions were conditions of service. The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who arc already in the panel or even of those who were expecting to be included in the panel, but it is not possible to agree that this would amount to changing their conditions of service. It is difficult to think of the conditions of service of an employee as including an implied right to prevent the employer from altering the conditions of service of other employees. In a given case such alteration may be inequitable, and a way may be found in the Industrial Disputes Act to redress the grievance of the employees affected hereby, but in this case the question is whether it amounts to altering the condition of service of the complainants. In reserve bunk of India v n.c. paliwal, (1977)1 scr 377 : AIR 1976 SC 2345 this court upheld the validity of the combined seniority scheme, introduced by the reserve bank for the clerical staff. The first paragraph of the hcadnotc to the report summarizes the facts on which challenge, to the scheme was based: "at every centre of the reserve bank of India there were five departments, the general department and four specialised departments. There was a separate seniority list for the employees in each department at each centre and confirmation and promotion of employees was only in the vacancies arising within their department at each centre. There were two grades of clerks in each department, namely, grade 1 and grade ii. The pay scales of grade i and grade ii clerks in all the departments were the same and their conditions of service were also identical. There was automatic promotion from grade ii to grade i and when a clerk from grade ii was promoted to officiate in grade i, he got an additional officiating allowance of Rs. 251- per month. There were also several categories of non-clerical posts in the general as well as specialised departments, and their pay-scale was the same as that of grade ii clerks. In view of expanding activities in the specialised departments, there were greater opportunities for confirmation and promotion for employees in the specialised departments than in the general department. This gave rise to dissatisfaction amongst employees in the general department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion. The reserve bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter-transfcrabilily was undesirable and hard lo achieve. As a result of the recommendation of the national tribunal, however, the reserve bank introduced the optce scheme of 1965 as a first step towards equalization of opportunities. Under the scheme, the option to go over to the specialised departments was confined to confirmed grade ii clerks and officiating grade i clerks in the general department. If he exercised the option, he was eligible to be selected. If he was selected, he would be entitled to be absorbed only as grade, ii clerk in one of the specialised departments with the result that if he was an officiating grade i clerk in the general department at the time of the exercise of the option, he would lose the benefit of officiation in grade i in the general department as also the monetary benefit of Rs. 25/-. His seniority in the cadre of grade ii clerks in the specialised department in which he was absorbed would be determined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service." it was argued in paliwal's case that the combined list was invalid because it discriminated against the petitioners vis-a-vis other grade ii clerks who had opted under the optec scheme, of 1965. This court held: the contention of the petitioners was that some of the grade ii clerks who had opted under the optce scheme of 1965 were promoted as grade i clerks, while the petitioners continued as grade ii clerks and before their turn for promotion could arrive, the combined seniority scheme was brought into force and that prejudically affected their promotional opportunities and thus brought about unjust discrimination between persons belonging to the same class. This contention has no force and must be rejected. We have already discussed and shown that it was competent to the reserve bank to introduce the combined seniority scheme for the purpose of integrating the clerical staff in all the departments and the reserve bank was not bound to wait until all the transferee grade ii clerks under the optee scheme of 1965 were promoted as grade i clerks in their respective specialised departments. There was no such assurance given by the reserve bank when it introduced the optce scheme of 1965. What it did was merely to equalise the opportunities of grade ii clerks in the general departments with those of grade ii clerks in the specialised departments. The reserve bank did not undertake that it will not take any steps for bringing about total integration of the clerical services until all the transferee grade ii clerks were promoted. The reserve bank was entitled to introduce the combined seniority scheme at any time it thought fit and the validity of the combined seniority scheme cannot be assailed on the ground that it was introduced at a time when some of the transferee grade ii clerks still remained to be promoted and was discriminatory against them. It may be that some transferee grade ii clerks had already obtained promotion as grade i clerks by the time the combined seniority scheme was introduced, while others like the petitioners had not. But that cannot be helped. It is all part of the incidence of service and in law, no grievance can be made against it. These observations in paliwal's case are equally applicable to the case before us. It was competent for the bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when circular No. 6 was introduced had been promoted as staff officers gradc-a. There was no such assurance given by the bank when it introduced circular No. 6 on which the complainants rely. The bank did not undertake that it would not take any step to change the conditions the stenographers and the personal assistants were required to satisfy lo be able to appear in the test until all the clerks already empanelled were promoted. Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted. That cannot be helped, and, as observed in paliwal's case, 'it is all part of the incidence of service and in law no grievance can be made against it'. Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted. It may be recalled that in 1964 and again by circular No. 8 in 1972 the stenographers' conditions of service were altered to their prejudice. The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier. The grievance of the complainants really relates to the changes affecting their chances of promotion. We have earlier quoted from the charters of demand to show that the complainants themselves looked upon the alterations made by circular No. 6 as affecting their 'chances of promotion'. It is well settled that a Rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of promotion only. This court in mohd. Shjat ali v union of india, (1975)1 scr 449 : AIR 1974 SC 1631 held: 'but when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion the latter would certainly not be a condition of service . . . .that though a right to be considered for promotion is a condition of service, mere chances of promotion are not.' in shujat all's case the respondents went down in seniority and it was urged that this affected their chances of promotion. In shujat al\ reference was made to an earlier decision of this court, state of Mysore v g. N. Piirohh, c.a. No. 2281 of 1966, decided on 25-1-1967 (reported iu 1967 sen'. Lr 753 (sc)) where also it was held that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a Rule which merely affects chances of promotion cannot be regarded as varying a condition of service. The facts of purohit's case and what was decided in that case have been summarized in shujat ali's case AIR 1974 SC 1631 as follows (at p. 1646): 'what happened in slate of Mysore v g.n. purohit was thai the district wise seniority of sanitary inspectors was changed to slate-wise seniority and as a result of this change, the respondents went down in seniority and became very juniors. This, it was urged, affected their chances of promotion which were protected. . . This contention was negatived and wanchoo j., as he then was, speaking on behalf of this court observed: it is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service.' the fact that as a result of the changes made by circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion. That being so, it cannot be said that the alterations made by circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis. The appeals arc accordingly allowed and the complaints dismissed. In the circumstances of the case the parties will bear their own costs. Appeals allowed." the Supreme Court has subsequently taken similar view in radhey shyam v nazar singh, AIR 1982 SC 101. The decision of the Supreme Court 'in state of maharashtra, etc. V bhalclwndra khanderao joshi and ol/iers, AIR 1977 SC 1241 also supports the same view. Hence, it cannot be said that by amalgamation or merger of 2 cadres there is any change or alteration of service conditions of any one of the cadres.