Kerala High Court
K. Abdulla vs The Union Of India on 25 August, 2009
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 13TH DAY OF APRIL 2012/24TH CHAITHRA 1934
WP(C).No. 37074 of 2010 (H)
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PETITIONER(S):
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K. ABDULLA, JUNIOR LAISON OFFICER,
COFFEE BOARD, PANAMARAM, KALPETTA,
WAYANAD -673 721.
BY ADVS. SRI.P.B.KRISHNAN,
SMT.GEETHA P.MENON,
SRI.P.M.NEELAKANDAN,
SRI.P.B.SUBRAMANYAN.
RESPONDENT(S):
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1. THE UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF FINANCE, NEW DELHI-110 001.
2. THE COFFEE BOARD,
REPRESENTED BY ITS CHAIRMAN,
DR.AMBEDKAR VEEDHI, BANGALORE-560 001.
3. A. BALAKRISHNAN, COFFEE BOARD,
KUMARGHAT, TRIPURA-799 264.
4. PRANATHI GOSWAMY, COFFEE BOARD,
SURATH NAGAR, HAFLONG, ASSAM-788 819.
5. PARTHA PRATIM CHOUDHURY,
COFFEE BOARD, DUNCAN ROAD,
MUKOKCHUNG, NAGALAND-796 001.
R1 BY ADV. SRI.P.PARAMESWARAN NAIR, ASG. OF INDIA,
R2 BY ADVS. SRI.V. BHASKARAMENON,
SRI.E.K.NANDAKUMAR,
SRI.A.K.JAYASANKAR NAMBIAR,
SRI.K.JOHN MATHAI,
SRI.P.BENNY THOMAS,
SRI.P.GOPINATH.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13-04-2012, ALONG WITH W.P.(C)NO.12906 OF 2011 AND
W.P.(C)NO.15333 OF 2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
rs.
WP(C).No. 37074 of 2010 (H)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE PROCEEDINGS ISSUED BY THE CHAIRMAN
OF THE COFFEE BOARD DATED 25/08/2009.
EXT.P2 COPY OF THE REPRESENTATION MADE BY THE COFFEE
BOARD EMPLOYEES ASSOCIATION DATED 12/01/2009.
EXT.P3 COPY OF THE O.M.F. NO.1/1/2008-IC ISSUED BY
GOVERNMENT OF INDIA DATED 13/11/2009.
EXT.P4 COPY OF THE PROCEEDINGS NO.ADM/EB.1/2010-11 ISSUED
BY THE CHAIRMAN OF THE COFFEE BOARD DATED 21/04/2010.
EXT.P5 COPY OF THE PROCEEDINGS NO.ADM/EB.1/2010-11/1778
ISSUED BY THE CHAIRMAN OF THE COFFEE BOARD
DATED 13/15-07-2010.
EXT.P6 COPY OF THE PROCEEDINGS NO.ADM/EB.1/2010 ISSUED
BY THE CHAIRMAN OF THE COFFEE BOARD DATED 30/04/2010.
EXT.P7 COPY OF THE CIRCULAR NO.ADM/EB.1/2006-07/5248
ISSUED BY THE COFFEE BOARD DATED 02/03/2007.
EXT.P8 COPY OF THE REPRESENTATION MADE BY THE COFFEE
BOARD EMPLOYEES ASSOCIATION DATED 27/07/2010.
EXT.P9 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT
IN W.P.(C)NO. 24318/2010-L DATED 06/08/2010.
EXT.P10 COPY OF THE ORDER NO.ADM/LEG/2010/3182 ISSUED
BY THE COFFEE BOARD DATED 11/10/2010.
EXT.P11 COPY OF THE PROCEEDINGS NO.ADM/EB.1/2010-11/2419
ISSUED BY THE CHAIRMAN OF THE COFFEE BOARD
DATED 19/08/2010.
EXT.P12 COPY OF THE NOTIFICATION NO.G.S.R.622(E) ISSUED BY
RESPONDENT NO.1 DATED 29/08/2008.
EXT.P13 COPY OF THE PROCEEDINGS NO.ADM/EB.1/2009-10/2237
ISSUED BY THE 2ND RESPONDENT DATED 29/07/2009.
EXT.P14 COPY OF THE PROCEEDINGS NO.ADM/EB.1/2009-10/2065
ISSUED BY THE 2ND RESPONDENT DATED 20/07/2009.
EXT.P15 COPY OF THE PROCEEDINGS NO.ADM/EB.1(R)/2011/2/888
ISSUED BY THE 2ND RESPONDENT DATED 30/05/2011.
WP(C).No. 37074 of 2010 (H)
EXT.P16 COPY OF THE ADVERTISEMENT NO.ADM/EB.1(RECTT)/001/
2011-12/938 ISSUED BY RESPONDENT NO.2 DATED 01/06/2011.
EXT.P17 COPY OF THE ORDER NO.JDK/EB11/71 ISSUED
BY RESPONDENT NO.1 DATED 06/06/2011.
EXT.P18 COPY OF THE PROCEEDINGS NO.ADM/EB.1/(R)
2011-12/1205 ISSUED BY THE 2ND RESPONDENT DATED 13/06/2011.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
C.T.RAVIKUMAR, J.
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W.P.(C)Nos.37074 of 2010,
12906 & 15333 of 2011
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Dated 13th April, 2012
JUDGMENT
The basic facts and issues in these writ petitions are intrinsically intertwined and call for a joint hearing and disposal. Accordingly, they were heard jointly. W.P.(C)No.37074 of 2010 and W.P.(C)No.15333 of 2011 are filed by the same person, who is presently working as Junior Liaison Officer under the Coffee Board in its Wayanad office. The petitioner in W.P.(C)No.12906 of 2011 also holds the same post under the Coffee Board in its office at Idukki.
2. W.P.(C)No.37074 of 2010 is filed mainly challenging Exts.P5, P10 and P11. Ext.P5 is the proceedings bearing No.ADM/EB.I/2010-11/1778 dated 13/15/07/2010 of the Chairman of the Coffee Board, whereby the cadre of `Junior Liaison Officer' in the pre-revised scale of pay of Rs.6500-10500 was redesignated as `Liaison Officer' with a grade pay of Rs.4,600/- in the pay band PB-2. Ext.P10 is the order bearing No.ADM/LEG/2010/3182 dated 11.10.2010 issued by the Secretary of the Coffee Board rejecting Ext.P8 representation dated 27.7.2010 submitted by the petitioner in his alleged capacity as the President of the Coffee Board Employees' WP(C).No.37074/2010 & connection 2 Association, virtually, seeking to drop the proposal in Ext.P5 for creating newly designated cadre of Liaison Officer in between the cadre of Junior Liaison Officer and Senior Liaison Officer. Ext.P11 is the proceedings bearing No.ADM/EB.1(R)/2010-11/2419 dated 19.8.2010 of the Chairman of the Coffee Board promoting respondents 3 to 5 herein to the cadre of Senior Liaison Officer - Group `B', in PB-2 pay band Rs.9300-34800 with a grade pay of Rs.5400/-. The petitioner also seeks for issuance of a writ of mandamus commanding the first respondent firstly to prepare and publish the combined seniority list of officers in the integrated cadre of Junior Liaison Officer as on 1.1.2006 and secondly not to effect any appointment to the post of Liaison Officer before finalising such a list of Junior Liaison Officers.
3. W.P.(C)No.15333 of 2011 is filed with the prayer to issue a writ of certiorari or any other appropriate writ or order quashing Ext.P11 in so far as it proposes to redesignate Junior Liaison Officers as Assistant Extension Officer Grade I. Ext.P11 therein is the proceedings of the Chairman of the Coffee Board bearing No.ADM/EB.1(R)/2011- 12/888 dated 30.5.2011. W.P.(C)No.12906 of 2011 is filed mainly with the prayer to call for the records leading up to Exts.P4 and P7 and to quash them by issuing a writ of certiorari. Exts.P4 and P7 are respectively the proceedings bearing Nos.ADM/EB.I/2010-11/1778 dated WP(C).No.37074/2010 & connection 3 13/15.07.2010 of the Chairman of the Coffee Board and ADM/LEG/2010/3182 dated 11.10.2010 issued by the Secretary of the Coffee Board which were marked respectively as Exts.P5 and P10 in W.P. (C)No.37074 of 2010. The petitioner also seeks for a declaration that Exts.P4 and P7 orders are illegal, arbitrary and ultra vires the Coffee Board (Cadre and Recruitment) Rules, 1993 and also for issuance of writ of mandamus commanding the respondents not to divest persons presently working in the cadre of Junior Liaison Officers of independent charge of various offices by posting persons included in the cadre of Liaison Officers by virtue of Ext.P4 order.
4. In all these three writ petitions Union of India and the Coffee Board are arrayed respectively as the first and second respondents. The learned Assistant Solicitor General took notice on behalf of the first respondent. Service on R5 declared as complete and the other party respondents though served with notices have not chosen to enter appearance and to resist the contentions and claims.
5. A compendious narration of facts, that made the petitioners to come up with such prayers as aforementioned, is essential for appropriate consideration of the issues involved in these writ petitions. The petitioner in W.P.(C)No.37074 of 2010 and in W.P.(C) WP(C).No.37074/2010 & connection 4 No.15333 of 2011, Sri.K.Abdulla, who claims to be the President of the Kerala unit of the Coffee Board Employees' Association, commenced his career under the Coffee Board in 1972 as Junior Field Assistant. The said post was subsequently redesignated as Assistant Extension Inspector. He was then promoted as Extension Inspector and later as Assistant Extension Officer Grade II. The petitioner in W.P(C)No.12906 of 2011 too, joined in its service as a Junior Field Assistant and that was on 3.5.1984. On obtaining further promotions he reached the post of Assistant Extension Officer Grade II in the year 2008.
6. The method of recruitment and qualifications for different posts in the service of the Coffee Board are prescribed in the Coffee Board (Cadre and Recruitment) Rules, 1993 (for short `the Rules'). The Sixth Central Pay Commission recommended for the merger of three existing scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 and placed them in the Pay Band PB2 - Rs.9300-34800/- having a grade pay of Rs.4,200/-. In Coffee Board, scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 were the scales of pay attached respectively to the posts of Assistant Extension Officer Grade II, Assistant Extension Officer Grade I and Junior Liaison Officer. The recommendations of the Sixth Central Pay Commission took effect from 1.1.2006. As per Ext.P1 proceedings dated 25.8.2009 the Coffee Board declared merger of WP(C).No.37074/2010 & connection 5 Assistant Extension Officer Grade II, Assistant Extension Officer Grade I and Junior Liaison Officer and the merged cadre was designated as `Junior Liaison Officer' with a grade pay of Rs.4,200/- in the pay band PB-2: Rs.9300-34800, with effect from 1.1.2006. Consequently, the petitioners who were holding the post of Assistant Extension Officer Grade II became members of the merged cadre designated as Junior Liaison Officer. It is relevant to state that up to this stage there is no factual dispute.
7. The disputatious situations occurred thereafter. According to the petitioners, pursuant to the recommendation for the merger of the aforesaid three existing pay scales into a single cadre, as mentioned above, certain officers in the scale of pay of Rs.6500-10500 in various Government Departments and other public sector undertakings approached the Central Government requiring upgradation of their cadre. Subsequently, the first respondent-Union of India issued Ext.P3 O.M.F.No.1/1/2008-IC dated 13.11.09 ordering a higher grade pay of Rs.4600 /- subject to the specifically mentioned conditions thereunder. Consequently, officers in the Coffee Board in the scale of pay of Rs.6500- 10500, immediately prior to 1.1.2006, were granted higher scale grade pay of Rs.4600/- in pay band PB-2 of Rs.9300-34800 ignoring the fact that as per Ext.P1 order all the three aforesaid existing scales under the WP(C).No.37074/2010 & connection 6 Coffee Board were merged into one cadre with common designation `Junior Liaison Officer' and with a grade pay of Rs.4,200/-. The petitioners contend that any consequential action in terms of Ext.P3 was actually uncalled for in Coffee Board as regards the pre-existing cadre with pay scale Rs.6500-10500, in the light of Ext.P1. In order to substantiate their contention the petitioners drew my attention to the following recital in Ext.P3:-
"The Commission gave specific recommendations in its Report granting higher grade pay of Rs.4600 to some categories of these posts. As regards the other posts, the Commission recommended that it should first be seen if the posts in these 3 scales can be merged without any functional disturbance and if possible, the same should be done. Further, the Commission recommended that in case it is not feasible to merge the posts in these pay scales on functional consideration, the posts in the scale of Rs.5000- 8000 and Rs.5500-9000 should be merged with the posts in the scale of Rs.6500-10500 being upgraded to the next higher grade in the pay band PB-2 with grade pay of Rs.4600 corresponding to the pre-revised scale of Rs.7450- 11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500."
(emphasis supplied)
8. It is the contention of the petitioners that, going by the clear and unambiguous terms in Ext.P3, as extracted above, upgradation of the scale of Rs.6500-10500 to the next higher grade in the pay band PB-2 with grade pay of Rs.4600/- corresponding to the pre-revised scale of Rs.7450-11500 is required only in case it is not feasible to merge the WP(C).No.37074/2010 & connection 7 above mentioned three existing pre-revised scales on account of functional disturbance. The core contention of the petitioners is that Ext.P1 dated 25.8.2009 of the Chairman of the Coffee Board effecting merger of the three pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 under the Board and placing them in pay band PB-2:
Rs.9300-34800/- with grade pay of Rs.4200/- would undoubtedly reveal that a merger of those three pre-revised scales without any functional disturbance was possible and, in fact, the merger was carried out much prior to that as per Ext.P1 dated 25.8.2009 with effect from 1.1.2006. Even going by Ext.P3, wherever such a merger without any functional disturbance is possible, it should be done. Having effected the merger of the said three pre-revised scales without any functional disturbance, there was absolutely no situation warranting a de-merger solely for the purpose of granting upgradation for those originally in the pre-revised scale of pay of Rs.6500-10500 to the next higher grade in the pay band PB-2 with grade pay of Rs.4600/- corresponding to the pre-revised scale of Rs.7450-11500/-. It is specifically contended that under the Coffee Board there exist no post in the scale of Rs.7450-11500. In effect, according to the petitioners, ignoring the true intent and purport of Ext.P3, the factum of merger of the aforesaid three pre-revised scales, Ext.P1 and also the absence of any direction to do de-merger in Ext.P3 the authorities under the Coffee Board should not have effected WP(C).No.37074/2010 & connection 8 de-merger of cadre that originally carried the pre-revised scale of Rs.6500-10500 to which the cadres that carried the pre-revised scales of Rs.5000-8000 and Rs.5500-9000 merged into solely to alleviate the grievances of those who were in the said cadre by granting upgradation to the next higher grade in the pay band PB-2 with a grade pay of Rs.4600/- corresponding to the pre-revised scale of Rs.7450-11500/-.
9. Per contra, the second respondent contended that a de- merger had been effected after the merger of the three pre-revised scales of pay as referred to earlier, and then, those originally belonged to the existing pre-revised scale of Rs.6500-10500 were granted upgradation to the next higher grade in the pay band PB-2 with a grade pay of Rs.4600/- to alleviate their grievances. In the counter affidavit, the second respondent Coffee Board after highlighting corresponding duties and responsibilities of Junior Liaison Officer on one hand and Assistant Extension Officer Grade II and Assistant Extension Officer Grade I on the other hand, contended that the merger of scales of pay of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500/- without any functional disturbance is not at all possible in the Coffee Board. In fact, counter affidavits filed in all the writ petitions on behalf of the second respondent viz., the Coffee Board, are essentially on the same lines. As against the prayer for a direction to the first respondent made by the WP(C).No.37074/2010 & connection 9 petitioner in W.P.(C)No.37074 of 2010 it is contended in the counter affidavit that respondent No.1 Union of India got no role to play in the finalisation of seniority list or in the matter of promotions under the second respondent organization. A careful scrutiny of the contentions of the petitioner in W.P.(C)No.37074 of 2010 would reveal that it is only an inadvertent mistake made with respect to the status of the respondents in paragraph 6 and in the said prayer that formed the basis for the said contention. Virtually, the petitioner seeks for such a direction against the Coffee Board, the second respondent. That is evident from the contentions in paragraph 6 of W.P.(C)No.37074 of 2010 whereon the petitioner has raised contentions that the second respondent issued orders in O.M.F.No.1/1/2008-IC dated 13.11.2009 granting a higher grade pay of Rs.4,600/- to those who were in the pre-revised scale of Rs.6500-10500. In prayer Nos.2 and 3 the petitioner sought a direction to respondent No.1 to prepare and publish combined seniority list of officers in the integrated cadre of Junior Liaison Officer. If the pleadings in the said writ petition are taken as a whole, it would reveal that the petitioner is essentially seeking direction in prayer Nos.2 and 3 against the second respondent and not against the first respondent. Therefore, that technical contention deserves no serious consideration. I do not think it necessary to deal with the said issue any further, in the said circumstances.
WP(C).No.37074/2010 & connection 10
10. A perusal of the counter affidavit filed by the 2nd respondent Coffee Board would reveal that the factum of merger of the three pre-revised scales of pay viz., Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, into a single cadre and the designation of the merged cadre as Junior Liaison Officer with a grade pay of Rs.4,200/- in the scale of pay of Rs.9300-34800 is admitted. It is also admitted thereunder that pursuant to such merger and designation of the common cadre, the petitioners who were working as Assistant Extension Officer Grade-II came to the common cadre and since then working with the designation as Junior Liaison Officer. In fact, going by Ext.P1 dated 25.8.2009 the merger was given effect from 1.1.2006. The hierarchy of promotion posts of Assistant Extension Officer Grade-II, going by the Rules, are Assistant Extension Officer Grade-I, Junior Liaison Officer and Senior Liaison Officer, in that order. Virtually, the second respondent would admit the fact that after effecting a merger of the three pre-existing scales of pay as per Ext.P1 a de-merger was effected as regards those who were originally in the scale of pay of Rs.6500-10500, relying on Ext.P3, besides a merger of Assistant Extension Officer Grade I and Grade II. The second respondent contended that on account of the merger of pre-revised pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 as per Ext.P1 the posts which thus far constituted feeder WP(C).No.37074/2010 & connection 11 and promotion grades got merged into one cadre and as a result those who got promotions from the lower post and were working as Junior Liaison Officer on the date of implementation of Ext.P1 got prejudiced. It is also stated therein that earlier, on 6.4.2009, the Board had written to the Ministry of Finance through the Ministry of Commerce for permission to upgrade the grade pay of Rs.4.200/- to Rs.4600/- for the cadre that carried the pre-revised scale of Rs.6,500-10500. It was pending consideration of the same in the Ministry that the Board effected the recommendations of the Sixth Central Pay Commission and merged the feeder cadres carrying pay scales of Rs.5000-8000, Rs.5500-9000 with the promotional cadre carrying the pay scale of Rs.6500-10500 with grade pay of Rs.4200/- as per Ext.P1 dated 25.8.2009. It was, in order to alleviate the grievance of such persons working in the promotion post Ext.P3 order was issued and pursuant to the same de-merger was effected, it is contended.
11. The second respondent further stated therein that the merger of the said three pre-revised scales pursuant to the recommendation of the Sixth Central Pay Commission as per Ext.P1 created functional disturbance in the Coffee Board and in the circumstances relying on Ext.P3 de-merger was effected in respect of the erstwhile Junior Liaison Officer cadre and at the same time cadres of WP(C).No.37074/2010 & connection 12 Assistant Extension Officer Grade II and Assistant Extension Officer Grade I were merged into a common cadre. The cadre originally carrying scale of pay of Rs.6500-10500 viz., the erstwhile Junior Liaison Officer cadre was upgraded to the next higher grade in pay band PB-2 with a grade pay of Rs.4,600/- corresponding to the pre-revised scale of Rs.7450-11500/-. As regards the contention of the petitioners for assignment of seniority over those directly recruited to the post of Junior Liaison Officer between 1.1.2006 and 25.8.2009, it is stated in the counter affidavit that the said claim and contentions are devoid of merit and absolutely untenable. It is contended that persons belonging to that category have not been made parties to these writ petitions. It is also contended that admittedly, they were inducted into the service of the Coffee Board through direct recruitment into the post of Junior Liaison Officer prior to the order of merger viz., Ext.P1 dated 25.8.2009. Thus, according to the second respondent, they were holding higher scales and were in the higher category even prior to the order dated 25.8.2009 merging the feeder cadres with retrospective effect and that the impact of pushing them down in the seniority list is not actually contemplated as per Ext.P1. It is specifically stated in the counter affidavit that the order of merger, Ext.P1 dated 25.8.2009, was nullified on account of de- merger. The second respondent also attempted to justify the action on its part to effect further direct recruitment into the post of Junior Liaison WP(C).No.37074/2010 & connection 13 Officer. The second respondent has explained the duties and responsibilities of Junior Liaison Officer in detail to substantiate the contention that merger of the cadres of Assistant Extension Officer Grade I and Assistant Extension Officer Grade II with Junior Liaison Officer carrying respectively the scales of pay of Rs.500-8000, Rs.5500-9000 and Rs.6500-10500 would create and, in fact, created functional disturbance. Essentially, the attempt is to justify the action in relying on Ext.P3 for effecting de-merger of the merged cadre carrying the pre- revised scale of Rs.6500-10500/-.
12. A reply affidavit has been filed by the petitioner in W.P. (C)No.37074 of 2010. In the reply affidavit it has been specifically stated that apart from merger of the cadres of Assistant Extension Officer Grade I, Assistant Extension Officer Grade II and Junior Liaison Officer, merger of several other cadres were also effected by the Coffee Board, as is obvious from Exts.P13 and P14. As per Ext.P14, merger of five other cadres into a single cadre was effected. It is stated in the reply affidavit that Exts.P13 and P14 are still in force. As regards the letter alleged to have been addressed to the Ministry of Finance through the Ministry of Commerce dated 6.4.2009, it is stated that no documentary proof has been produced in support of the said statement. It is further stated therein that on account of the creation of a new cadre WP(C).No.37074/2010 & connection 14 between Junior Liaison Officer and Senior Liaison Officer, the promotional prospects of Junior Liaison Officer to Senior Liaison Officer has been blocked. More over, it is stated therein that as the cadres of Assistant Extension Officer Grade I and Assistant Extension Officer Grade-II did not exist after Ext.P1 order of merger and after Ext.P1 they are functioning as Junior Liaison Officers with the revised scale of pay of Rs.9300-34800 with the grade pay of Rs.4200/-, it is stated that those who were in the cadres of Assistant Extension Officers Grade-I and Grade-II are also entitled to and eligible for the higher grade pay of Rs.4600/-.
13. I have heard the learned counsel on both sides.
14. The rival pleadings would undoubtedly show that pursuant to the recommendation of the Sixth Central Pay Commission merger of three pre-revised scales viz., Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 had been effected through Ext.P1 under the Coffee Board. Further, it would show that as a result of such merger the common cadre got designated as Junior Liaison Officer and was put in pay band PB-2 at Rs.9300-34800 with a grade pay of Rs.4200/-. The said merger was ordered with effect from 1.1.2006. Subsequently, Ext.P2 was submitted. True that, there is a dispute with respect to the WP(C).No.37074/2010 & connection 15 status of the petitioner in W.P.(C)No.37074 of 2010 and 15333 of 2011 as the President of the Coffee Board Employees' Association. Be that as it may, it is evident that, as per Ext.P2, willingness to shoulder equal responsibility of those in the cadre holding pre-revised pay scale of Rs.6,500-10500 was explicitly expressed. Further, it was required to assign service seniority, taking into account the merger of the said three cadres. Evidently, it is thereafter that Ext.P3 was issued by the first respondent. In view of the rival contentions and in the light of Ext.P3 certain questions posed for consideration; whether Ext.P3 invariably suggest upgradation of the cadre carrying the the pre-revised scale of pay of Rs.6500-10500 to the next higher grade in the pay band PB-2 with grade pay of Rs.4,600 under all circumstances? whether a de- merger is possible and permissible relying on Ext.P3? whether it is incumbent for the concerned departments and public sector undertakings to effect merger of the three pre-revised scales as far as possible? Before adverting to the aforesaid issues, I think it is appropriate to deal with the statement of the second respondent that merger was effected while its letter dated 6.4.2009 addressed to the Ministry of Finance through the Ministry of Commerce was pending. According to the second respondent, as per the said letter permission was sought for upgradation of the cadre carrying the pay scale of Rs.6500-10500 to the next higher grade in the pay band PB-2 with a grade pay of Rs.4,600/-. Evidently, WP(C).No.37074/2010 & connection 16 Ext.P1 was issued after the alleged submission of letter dated 6.4.2009. Curiously, there is conspicuous absence of any reference about the said letter dated 6.4.2009 in Ext.P1. Obviously, it is not stated therein that the merger of the cadres carrying the pre-revised scales of Rs.5000- 8000 and Rs.5500-9000 with the cadre carrying pre-revised scale of Rs.6500-10500 was being effected pending decision or subject to the decision on the request for upgradation made through the letter dated 6.4.2009. Ext.P8 representation was submitted on the subject of de- merger of the cadre carrying the pre-revised pay scale of Rs.6500-10500 in pay band PB-2 and redesignation as Liaison Officer. That representation was rejected by the Chairman of the Board as per Ext.P10 dated 11.10.2010. Curiously, in the said order also there was no mention about the letter dated 6.4.2009, referred to earlier. More over, even after the specific contention raised by the petitioner in the reply affidavit touching the reliability of the statement regarding submission of the letter dated 6.4.2009 the second respondent has not cared to produce copy of the letter dated 6.4.2009 as also, the material to show that it was, in fact, sent. I am of the considered view that even if such a letter was actually written, in view of Ext.P1 effecting the merger of the three pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500- 10500 it may not carry any further significance especially, in the light of Ext.P3. Evidently, in Ext.P3, the first respondent has taken note of the WP(C).No.37074/2010 & connection 17 fact that the Sixth Central Pay Commission had recommended that attempts should be made for the merger of the three pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 and if a merger of the said three cadres, without any functional disturbance, is possible, then, it should be done. The further course of action of upgradation of the scale of the cadre carrying the pre-revised scale of Rs.6500 - 10500 to the next higher grade in the pay band PB-2 with grade pay of Rs.4600/- is recommended, evidently, only in the event of impossibility of such a merger without any functional disturbance. In other words, it can be seen that Ext.P3 also primarily lay emphasis and recommends for merger of the three pre-revised scales and wherever such a merger could be effected without any functional disturbance it should be done, going by Ext.P3. In short, Ext.P3 cannot be understood as an O.M. carrying a specific direction not to effect merger of the three pre-revised scales and it is, in fact, recommends for the same though it deals with the course of action to be followed in a case where such merger without functional disturbance is not possible in regard to the cadre carrying the pre-revised scale of Rs.6500-10500. At any rate, a scanning of the same would undoubtedly reveal that it never contemplates a de-merger. Admittedly, in this case, a merger of the three pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 under the Coffee Board was effected asper Ext.P1 with effect from 1.1.2006. Ext.P3 is WP(C).No.37074/2010 & connection 18 dated 13.11.2009. What was done should not have been undone relying on Ext.P3 especially when Ext.P3 did not deal with or permits de-merger and in fact, recommends for a merger. The second respondent did not have a case that based on the letter dated 6.4.2009 and after taking stock of the subsequent developments based on Ext.P1 permission was granted for a de-merger and for consequential ungradation of the concerned cadre. The second respondent would admit that, in the light of Ext.P1, the cadre carrying the three revised pay scales were merged into a common cadre designated as Junior Liaison Officer and pursuant to which the petitioners who were working in the cadre of Assistant Extension Officer Grade II came to be designated as Junior Liaison Officer. If there was actual functional disturbance a merger of the said three cadres could not and would not have been effected with effect from 1.1.2006, as per Ext.P1 dated 25.8.2009. That apart, it is evident that it is the issuance of Ext.P3 that made the second respondent Coffee Board to think about unsettling of the merger and but for Ext.P3, the position obtained on account of merger would have been continued. Evidently, the second respondent had taken Ext.P3 as one carrying a direction to effect upgradation of the cadre carrying pre-revised scale of Rs.6500- 10500 to the next higher grade in pay band PB-2 with the grade pay of Rs.4,600/-. As stated earlier, a careful reading of Ext.P3 would reveal that it essentially demands for merger of the three pre-revised pay, WP(C).No.37074/2010 & connection 19 taking into account the recommendation of the Sixth Central Pay Commission. In the case in hand, it is evident that in and vide Ext.P1 the cadres of Assistant Extension Officer Grade-II and Assistant Extension Officer Grade-I carrying respectively pre-revised scales of pay of Rs.5000-8000 and Rs.5500-9000 were already merged with the cadre of Junior Liaison Officer then, carrying the pre-revised scale of Rs.6500- 10500. Therefore, after Ext.P1, the second respondent cannot be heard to contend that there exists the cadres of Assistant Extension Officer Grade-II and Assistant Extension Officer Grade-I. In other words, after Ext.P1, there was absolutely no reason for ordering for a merger of the already merged cadres of Assistant Extension Officer Grade-II and Assistant Extension Officer Grade-I. The reasoning in the counter affidavit for effecting a merger is that pursuant to the merger those who were originally in the promotion cadre carrying the pre-revised scales of pay of Rs.6500-10500 got aggrieved and it was to alleviate their grievances that a demerger was effected. In that attempt, the persons in the cadre who were already in the pre-revised scale of Rs.6500-10500 were upgraded to the next higher grade in pay band PB-2 with a grade pay of Rs.4600/- ignoring the impact and effect of Ext.P1 dated 25.8.2009. When feeder categories merge with a promotional cadre those who were already in the promotional cadre may feel aggrieved. That by itself cannot be a reason for undoing what was done on the WP(C).No.37074/2010 & connection 20 strength of a valid order in the absence of specific orders permitting for de-merger. In short, the dissatisfaction or unrest among those in the higher grade viz., pre-revised scale of Rs.6500-10500 on the merger of certain lower cadre with their cadre cannot be taken as the reason for effecting a de-merger and then effecting upgradation, in the absence of any specific order for de-merger, of that merged cadre. True that, in the counter affidavit the second respondent has narrated in detail, the duties and responsibilities of Junior Liaison Officers. The attempt of the second respondent is that the duties of those already in the cadre of Junior Liaison Officers was to monitor the works of those in the cadres of Assistant Extension Officer Grade-I and Assistant Extension Officer Grade-II and such other lower categories. It is thus evident that the works in question were essentially carried out by those in the cadres of Assistant Extension Officers Grade-I and Grade-II. True that, bringing them to the promotional cadre might have created unrest and dissatisfaction among those who were already reached the promotional cadre. Even after a careful consideration of the pleadings in the counter affidavit and upon hearing the learned counsel for the second respondent I am constrained to say that the real functional disturbance created on account of the merger of the three cadres viz., Assistant Extension Officer Grade-I, Assistant Extension Officer Grade-II and Junior Liaison Officer was not brought out and the unrest and dissatisfaction among WP(C).No.37074/2010 & connection 21 those who originally belonged to the post of Junior Liaison Officer in the pre-revised scale of Rs.6500-10500 cannot be regarded as `functional disturbance'. At any rate, the second respondent had failed to bring out the real functional disturbance. Matters of functional disturbance ought to have been taken into consideration before issuing Ext.P1. It is pertinent to note that even in Ext.P1 there was nothing which would suggest that merger was ordered provisionally with a view to look into the functional disturbance, if any. Since that stage is over, the question is whether the position obtained pursuant to Ext.P1 could have been altered to the disadvantage of any of the merged categories as has been done in this case. In this case, as already stated, those who were in the cadres carrying the scales of pay of Rs.5000-8000, Rs.5500-9000 are further aggrieved by the action in making another cadre between Junior Liaison Officers and Senior Liaison Officers. In fact, such a cadre was created without any legal backing by de-merging the cadre carrying the scale of pay of Rs.6500-10500 to which the other cadres merged. Its adverse impact is that the petitioners and others similarly situated who could otherwise aspire for promotion to the post of Senior Liaison Officer in accordance with their eligibility and seniority could not aspire any further promotion to the said post. In other words, the action on the part of the respondents in forming another cadre as `Liaison Officer' in between Junior Liaison Officer and Senior Liaison Officer and further WP(C).No.37074/2010 & connection 22 bringing fresh direct recruits into the said cadre by direct recruitment would make the promotional prospects of the petitioners and similarly situated persons bleak. True that, creation or abolition of cadres are within the domain of the employer. There is no case for the second respondent that a new cadre was formed after bringing in proper amendment to the Rules. So also, there is case that the feeder cadre was changed after making proper amendment in the Rules. In this case, admittedly, going by the Recruitment Rules, there is no post of Liaison Officer as such. If there is no such post, a direct recruitment to such a cadre, that too, to the disadvantage of those in the merged cadre of Junior Liaison Officer cannot be said to be legal. It is a settled position of law that when a particular cadre in a service merged with another cadre a further discrimination of such a cadre based on their birthmark is illegal and impossible. Virtually, in this case, the second respondent accepts and acknowledges the said position lest it would not have withdrawn the formation of a cadre with designation of Liaison Officer. However, a close scrutiny would reveal that even after withdrawing the said designation indirectly the second respondent is attempting to achieve the goal by treating the petitioners and others similarly situated, who by virtue of the merger reached the post of Junior Liaison Officer as a separate cadre. In fact, for that purpose, the cadres existed prior to Ext.P1 as Assistant Extension Officers Grade-I and Grade-II that WP(C).No.37074/2010 & connection 23 originally merged with Junior Liaison Officer were de-merged from Junior Liaison Officer cadre and then merged into a common cadre redesignated as Assistant Extension Officer Grade-I. Evidently, based on such a treatment they are being put only in charge arrangement.
15. The learned counsel for the second respondent relied on the decision of the Hon'ble Apex Court in Maharashtra State Judges Association and others v. Registrar General, High Court of Judicature at Bombay and another reported in (2009) 1 SCC 569) with a view to sustain the orders impugned. In view of the factual situation obtained in this case, as detailed above, I am of the considered view that the said decision cannot have any application as far as the facts of the cases on hand are concerned. In these cases, the posts in the pre-revised scales of Rs.5000-8000 and Rs.5500-9000 got merged with the post of Junior Liaison Officer carrying the scale of pay of Rs.6500-10500. On such merger, as noticed earlier, a common cadre with a common designation of Junior Liaison Officer with a grade pay of Rs.4200/- was formed. The de-merger was ordered subsequently solely based on Ext.P3 which actually did not envisage or recommend for a de- merger. In fact, it only mandates a merger of the pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 as far as possible. I am of the considered view that the second respondent cannot seek for WP(C).No.37074/2010 & connection 24 sustenance of the impugned action of de-merger and the consequential action in depriving the erstwhile personnel in Assistant Extension Officer Grade-I and Assistant Extension Officer Grade-II the benefit of merger and its consequential benefits, relying on Ext.P3 O.M. dated 13.11.2009. Thus, on a careful consideration of the factual and legal position of the case there can be no doubt that `functional disturbance' as now claimed is only a claptrap and the real reason for the de-merger is alleviation of of the grievances of those belonged to erstwhile Junior Liaison Officer cadre with the pre-revised scale of Rs.6500-10500/-. In the circumstances, the action in de-merging the erstwhile cadre of `Junior Liaison Officer' with the pre-revised scale of Rs.6500-10500 and re- designating it as `Liaison Officer' with grade pay of Rs.4,600/- in the pay band PB-2 ignoring Ext.P1 and the impact of merger of the said cadre with the erstwhile Assistant Extension Officer Grades- I and II also cannot be said to be legal. Therefore, Ext.P5 in W.P.(C)No.37074 of 2010 which is Ext.P4 in W.P.(C)No.12906 of 2011, has to be held as illegal. Ext.P10 in W.P.(C) No.37074 of 2010 which is Ext.P7 in W.P.(C) No.12906 of 2011 is also liable to be held as illegal.
16. For the foregoing conclusions, reasons and findings Exts.P5 and P10 in W.P.(C)No.37074 of 2010 which are Exts.P4 and P7 in W.P.(C)No.12906 of 2011 are set aside. All actions and orders WP(C).No.37074/2010 & connection 25 relating de-merger of the erstwhile cadre of Junior Liaison Officer with the pre-revised scale of pay of Rs.6500-10500 from the cadres of Assistant Extension Officer Grade-I and Grade-II as also the consequential order for merger of Assistant Extension Officer Grade-I and Grade-II with redesignated cadre name Assistant Extension Officer Grade-I are held as illegal and unsustainable. Resultantly, the petitioners and others similarly situated who reached the cadre of `Junior Liaison Officer' shall continue to remain merged in the Junior Liaison Officer Grade formed pursuant to Ext.P1 order dated 25.8.2009. Since the party respondents viz., the promotees under Ext.P11 in W.P. (C)No.37074 of 2010 who were directly recruited to the cadre of Junior Liaison Officer and reached the said cadre prior to 25.8.2009 the prayer of the petitioner in W.P.(C)No.37074 of 2010 to quash Ext.P11 dated 19.8.2010 is declined. In view of this orde,r the respondent authorities under the Coffee Board shall not effect appointment to the cadre of Liaison Officer. In the case of those in the erstwhile cadres of Assistant Extension Officer Grade-I and Grade-II who reached the common cadre of Junior Liaison Officer pursuant to Ext.P1 dated 25.8.2009 they shall not be divested of any consequential benefits available to them by virtue of Ext.P1 order dated 25.8.2009. The claim for seniority of the petitioners over those who were directly recruited as Junior Liaison Officers prior to 25.8.2009 is declined and they shall be entitled to stake WP(C).No.37074/2010 & connection 26 seniority in the newly created common cadre pursuant to Ext.P1 order dated 25.8.2009 only from the date on which they were actually brought into the said common cadre on or after 25.8.2009. It is made clear that direct recruits, if any, to the said common cadre subsequent to 25.8.2009 shall be placed only below those who were in the erstwhile cadres of Assistant Extension Officer Grade-I and Grade-II who reached the common cadre of Junior Liaison Officer by virtue of Ext.P1 order dated 25.8.2009. In case the Coffee Board decides to retain the fixation of grade pay of Rs.4600/- in the case of those who were in the pre- revised scale of Rs.6500-10500/- the claim of the petitioners and similarly situated who belonged to the erstwhile cadres of Assistant Extension Officer Grade-I and Grade-II, for the said grade pay shall be considered expeditiously, at any rate, within three months from the date of receipt of a copy of this judgment, taking into account the conclusions and findings in this judgment.
The writ petitions are disposed of as above.
Sd/-
C.T.RAVIKUMAR Judge TKS