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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