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Kerala State Electricity Board Vs. N. Sukesen & Ors [1996] INSC 843 (23 July 1996)

Hansaria B.L. (J) Hansaria B.L. (J) Agrawal, S.C. (J) Hansaria.J.

CITATION: JT 1996 (6) 575 1996 SCALE (5)398

ACT:

HEAD NOTE:

THE 23RD DAY OF JULY, 1996 Present:

Hon'ble Mr. Justice S.C. Agrawal Hon'ble Mr. Justice B.L .Hansaria P.S. Poti, T.L. Viswantha Iyer, Sr. Advs., Ms. Malini Poduval, K.M.K. Nair, Vipin Nair, E.M.S.Anam, Advs. with them for the appearing parties,

The following Judgment of the Court was delivered:

Kerala State Electricity Board V. N. Sukesen and Ors. Kerala State Electricity Board, hereinafter the 'Board', had one common establishment prior to 1964. A need having been felt to have separate and distinct establishment, named as secretariat establishment, the same came to be formed with effect from 1.4.1964, vide order of the Board dated 31.3.1964. With a view to ensure smooth functioning of the Secretariat Service so formed, the Board, in exercise of power conferred by section 79 (c) (k) of the Electricity (Supply) Act, made certain regulations which, inter alia, laid down the principle of inte - se seniority in its clause VII reading as below:

'VII. The inter se seniority of all categories of persons so appointed initially to the Secretariat will be determined and finalised with reference to the relative general seniority they held in the parent department and their services in the parent department will count for all purposes in the Secretariat Service also."

2. It was, however, felt that the separate service was not conducive to the smooth and efficient discharge of the administrative functions of the Board; and so, by order dated 14.1.1981 the separate and independent status of the Secretariat Service was brought to an end by making regulations called the Kerala State Electricity Board (Integration of Board Secretarial Establishment and General Establishment) Regulations, 1981. In these regulations the principle of seniority was laid down as below in clause (c):

"5(c). Subject to clause (f), relative seniority of persons drawn from the Secretarial Establishment and General Establishment including Accounts Wing and holding equated posts shall be determined on the basis of their length of service in the cadre/category concerned at the time of integration."

3. This principle was amended to read as below by order of 7.11.1985 :

"(a) xxx xxx xxx (b) the relative seniority of persons drawn from the secretariat establishment and the general establishment including the Accounts Wing shall be determined based on their ranking in the advice list of the Kerala Public Service Commission or the Board, as the case may be, at the time of initial recruitment by the Kerala Public Service Commission or the Board to the respective establishments under the Board subject to the application of rules regarding obligatory departmental tests." This virtually required length of service to be taken note of for determining inter-se seniority.

4. The High Court of Kerala was approached mainly by officers of the erstwhile Secretariat Service challenging the revised principle of seniority as laid down in 1985. The High Court, by the impugned judgment, held that the principle was hit by Article 14 as unequals were treated as equals and has, therefore, quashed the same. These appeals are by the Board and by some persons of the Genaral Establishment.

5. Shri Poti learned senior counsel appearing for the Board, has urged that the High Court was not justified in setting aside the principle of 1985, as such a principle had indeed been found valid by this Court in Om Prakash Sharma vs. Union of India, 1985 (supp) SCC 218, which was wrongly distinguished by the High Court. Shri Iyer, learned senior counsel appearing by the private respondents has, however, urged that Om Prakash's case was different on facts and High Court was right in not following the same to sustain the principle of inter se seniority as spelt out in 1985.

6. In our opinion, the decision in Om Prakash's case has to be applied in the instant appeals as well, because there the accelerated promotion which some of the respondents got in the cadre of Head Clerks because of the trifurcation was not required to be given weight after the different services/departments were amalgamated again. Here too, the principle of inter - se seniority in the order of 1985 has basically sought to do so the same by requiring the inter se seniority to be determined on the basis of the length of service in the cadre/category at the time of integration, and not by taking note no promotions earned in the Secretariat Service.

7. We have another reason to sustain the aforesaid principle and the same is that we are not quite satisfied if, while forming the Secretariat Service, the selection of the optees was really on the basis of merit, ability and suitablity as was required to be. We have said so because the Chairman of the Board, who had played a pivotal role in the selection, had stated before the arbitrator, whose award was pressed into service by Shri Iyer and to which we shall advert later, thus : "No tests were conducted for these appointments nor interviews. The selection for this wing was made by me taking into consideration their fidelity, the confidence that I can have on them. Only persons known to me were selected". In view of this, the award of the arbitrator dated 14.3.1967 holding that there was no mala fide or victimisation while making actual selection is not much significant.

8. Shri Iyer's main concern was that the aforesaid principle of inter-se seniority, if sustained, would result in reversion of the persons who had got accelerated promotion in the Secretariat Service. This was illustrated by the learned counsel by drawing our attention to equation of posts as finding place at page 66 of the Paper Book of C.A.No.3974/90, wherein the post of Assistant Secretary of the Secretariat Establishment has been shown as equal to Assistant Accounts Officer the next post below whom in the General Establishment being of Senior Superintendent.

Learned counsel contended that the aforesaid principle would require reversion of the Assistant Secretary of the Secretariat Service to Senior Superintendent of the General Establishment, as the latter may be senior to the former if the ranking at the time of the initial recruitment alone was to be taken into consideration. According to us, however, this is not the correct reading of the principle inasmuch as that only speaks about fixation of relative seniority, and does not visualise any reduction in rank of reversion.

It may be that the following of 1985 principle would make the Assistant Secretary of the illustration Junior to the Senior Superintendent, but that would not require the Assistant Secretary to be demoted to the post of Senior Superintendent.

9. In the aforesaid view of the matter, we set aside impugned judgment of the High Court, subject to the clarification/observation made above. In the fact and circumstances of the case, we leave the parties to be their own costs.

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