Karnataka High Court
Nagendra vs State Of Karnataka on 9 August, 1985
Equivalent citations: ILR1985KAR3394
ORDER Doddakale Gowda, J.
1. Validity of Rules/Orders absorbing certain officers of Development Department of districts of Gulbarga, Bidar and Raichur. Panchayat Extension Officers having no parent department and ministerial station the establishment of Taluk Development Boards including Ex-District Boards/ District Local Boards staff absorbed previously in Taluk Development Board Services, in corresponding posts of Revenue Department, as on 28-7-1976 are questioned by a few officers of Revenue Department on the ground that interpolation of these officers has marred their prospects, promotional chances have become bleak and rules are ultra vires; while grievance of some absorbed officials is that denial of their previous services is violative of Articles 14 and 16 of the Constitution of India; some plead for absorption in an equivalent cadre and a few of them contend that absorption without providing right of option is illegal.
2. Petitioners in Writ Petition No. 3956 of 1980 are Sheristedars, First Division Clerks and First Grade Revenue Inspector of the Revenue Department. Their Contention is that Rules providing for absorption is beyond the pale of rule making power; on account of interpolation of various officers, interse seniority of petitioners vis-a-vis absorbed officials is affected; opposed to Rule 6 of Seniority Rules and process of absorption not being one of the method of recruitment, Rules/Orders through which absorption are made are illegal.
3. Petitioner in Writ Petition No. 3303 of 1980 is an official of Ex-District Board whose services stood absorbed in Bantwal Taluk Development Board as per Government Order dated 22-11-1967. He has been promoted as an Accountant on 8-5-1974 in pay scale of Rs. 160-320. He pleads for absorption of post of Accountant with Sheristedar / Deputy Tahsildars, which according to him would be an equivalent post and his absorption as First Division Clerk in Revenue Department is illegal.
4. Contention of petitioners in Writ Petitions Nos. 2971 and 2972 of 1980 is to quash that portion of the Rule or Order which has denied them previous services and to direct Respondents to reckon their previous services for the benefit of leave, seniority, pay, pension etc. They contend that denial of benefit of previous services rendered in Taluk Development Board is discriminatory and highly unconscionable.
Contention of rest of the petitioners is more or less same.
5. Policy for absorption as embodied in Government Order No. RDC 52 SPL 76 dated 28th July 1976 reads thus:
"Read: Government Order No. RDC 164 MSC 75, dated 11-8-1975. Preamble :
1. (a) With the establishment of C.D. Blocks in a phased manner in 1950s and 1960s; necessary ministerial staff and field staff was also created to man the C.D. Programme at the Block, Sub-Division, District and Division Levels. The Divisional Commissioners and the Deputy Commissioners of Districts were entrusted with the responsibility to provide the Ministerial staff. Accordingly, except in the 3 Districts of Gulbarga, Bidar and Raichur, in all other Districts, the Deputy Commissioners made appointments as per Rules in force as if all the new posts created for implementation of the C.D. Programme fell within their units. Thus, no separate cadre of Development Department has been built up in the 16 Districts of the State. It may be mentioned here, that only in the year 1959, a separate Cadre and Recruitment Rules for Development Depart-ment were framed which also contained provisions to fill up the posts by Transfer of officials from other Departments.
(b) Only in the 3 Districts of Gulbarga, Bidar and Raichur, the officials entertained in connection with the implementation of CD.
Programme, has been kept as a separate Cadre.
(c) Government have considered the matter in detail and come to the decision that it is necessary to absorb the ministerial staff borne on the Development Cadre in the 3 Districts of Gulbarga, Bidar and Raichur in the Revenue Department whereby a uniform pattern throughout the State would be brought about.
2. Of the field staff entertained to implement the C.D. Programme : except the Panchayat Extension Officers, all the others are drawn from other Departments. Government have considered the cases of the officials of this cadre also and decided to absorb them in Revenue Department.
3. The staff borne on the establishment of the Taluk Development Boards which have come into being in pursuance of the provisions of the Karnataka Village Panchayats and Local Boards Act, 1959, along with the Ex. DLB staff absorbed In the Taluk a Development Board Services, and the staff borne on the establishment of the C.D. Blocks are working together with an element of uniformity in the matter of working effort and responsibility. But the former are not having the same service condi-tions and service benefits as are enjoyed by the latter. The need to remove the disparity has been considered by the Government.
Government after careful consideration are pleased to accord sanction to the absorption of (i) the ministerial staff borne on the Development Department in Gulbarga, Bidar and Raichur Districts (ii) the Panchayat Extension Officers who are having no parent Department, as such, (iii) and the ministerial staff borne on the establishments of the Taluka Development Boards, including the Ex. DLB staff absorbed previously in Taluka Development Board Services, as on the date of this order, in the corresponding posts of Revenue Department, as indicated in the Annexure.
Seniority of these personnel in the respective cadres of Revenue Department shall count from the date of absorption in Revenue Depart-ment which will take effect from the date of issue of this order.
This order issues with the concurrence of the Revenue Department vide their U.O. Note No. RD(B) 3519/76 dated 27-7-1976."
Government Order No. RDC 133 SPL 79, dated 28th November 1979 through which their grievance is redressed Sliehtly reads as follows :-
"Read : -- Govt. Order No. RDC. 52 SPL. 76, dated 28-7-1976. Preamble : --
In the Government Order cited, sanction was accorded to the absorption of (i) the ministerial staff borne on the Development Department in Gulbarga, Bidar and Raichur Districts (ii) the Panchayat Extension Officers having no parent Department as such, and (iii) the ministerial staff on the establishment of the Taluk Development Boards including the Ex-D.B./D.L.B. staff absorbed previously in Taluk Development Board Services, as on the date of the said order, in the corresponding posts of Revenue Department, as indicated in the Annexure thereto. It was further laid down in the said order that the seniority of these personnel in the respective cadres of Revenue Department which would take effect from the date of issue of the said order.
Subsequent to the issue of the above order, a number of representations voicing the grievances by and on behalf of the personnel involved in the absorption, over the condition laid down about their seniority in Revenue Department, have been received by the Government. After a thorough examination of all aspects of the matter, the Government have decided to modify the Government Order date 28-7-1976 to the extent permissible under the relevant Rules and circumstances leading to the absorption of the different categories of staff.
ORDER In partial modification of the Government Order dated 28-7-76, it is hereby directed that : -
(i) The officials of Development Department working in the cadres of First Division Clerks, Second Division Clerks, II Grade Typists, Jeep Drivers and Peons in the 3 Districts of Gulbarga, Bidar and Raichur in Gulbarga Division as on 28-7-76, who stand absorbed in Revenue Department as per the Government Order dated 28-7-76, shall count the entire length of service rendered in the respective cadres in Development Department for purposes of leave, increments, pension and seniority in the corresponding/cadres of Revenue Department in conformity with the provisions of Rule 16(a)(ii) read with Rule 21 of the KCS (General Recruitment) Rules, 1977 and Rule 6 of the KCS (Seniority) Rules, 1957 ;
(ii) Similarly, such of the Panchayat Extension Officers as are having no parent Department as such, working in any of the 19 Districts of the State, who stand absorbed in Revenue Department as per the Government Order dated 28-7-76, shall also count the entire length of service rendered by them from the date of their joining the post of Panchayat Extension Officer on their appointment by selection through Public Service Commission for the purposes mentioned under item (i) above, in the cadre of First Division Clerks/First Grade Revenue Inspectors of Revenue Department in conformity with the provisions of the Rules quoted under item (i) above, and ;
(iii) In respect of Block Accountants/Managers and the Ministerial staff of the Taluk Development Boards including the Ex-DB/LDLB staff previously absorbed in Taluk Development Board Services, Special Rules for their absorption would be issued separately.
This order issues with the concurrence of the Revenue Department vide their U.O. Note No. DS. 112/79 dated 25-1-79, DPAR vide their U.O. Note No. 2838/SRC/78 dated 21-12-78 and Finance Department vide their U.O. Note NO. FD. 2004. EXP. 11.79, dated 23-7-79."
In order to give effect to this policy, necessary Rules have been framed by Governor in exercise of power conferred under proviso to Article 309 of the Constitution of India. They are-(i) Transfer of Employees of the Karnataka General Service (Development Branch and Local Government Branch) to the Karnataka General Services (Revenue Subordinate Branch) Rules, 1979 and (ii) Karnataka Taluk Development Board Employees (Absorption in Karnataka General Services (Revenue Subordinate Branch) Rules, 1979.
Rules 2 and 3 of Transfer of Personnel of Development Branch reads thus:
2. Transfer of Employees of the Karnataka General Service Development Branch and Local Government Branch to the Karnataka General Services - Revenue Subordinate Branch: - Not with-standing anything contained in the Karnataka General Services (Revenue Subordinate Branch Recruit ment) Rules, 1959, or any other rules made under the proviso to Article 309 of the Constitution of India, the persons specified in column 3 in the Karnataka General Service Development Branch and Local Government Branch shall be and shall be deemed to have been appointed by transfer with effect from 28th July 1976 in the category of posts in the Karnataka General Services (Re-venue Subordinate Branch) men-tioned in the corresponding entries in column 4 thereto.
3. Leave, seniority, pay and pension of persons appointed:-The services rendered by the persons mentioned in column 2 of the schedule below, prior to 28th July 1976 shall notwithstanding anything contained in any other rules be taken into consideration for determining leave, seniority, pay and pension of such persons."
Rules 2 and 3 of absorption of TDB Employees Rules read thus:
2. Absorption as Government servants:- Notwithstanding anything contained in the Karnataka Civil Services (General Recruitment) Rules, 1977 and the rules of recruit-ment applicable to the post specified in column 4 of the schedule below or any other rule made under the proviso to Article 309 of the Constitution of India, persons specified in column 2, who on 28th July 1976 were holding under the Taluk Development Board, the posts mentioned in column 3 shall with effect from 28th July 1976 be deemed to have been absorbed in the Karnataka General Services (Revenue Subordinate Branch) mentioned in the corresponding entries specified in column 4 thereof.
3. Leave, seniority, pay and pension of the persons ABSOR-BED:-
The services rendered under the Taluk Development Boards by the persons mentioned in column 2 shall notwithstanding anything contained in any rules be taken into consideration for determining leave, seniority, pay and pension of such persons from the date of their absorption in the Karnataka General Service (Revenue Subordinate Branch)."
(underlining is mine) power to integrate various cadres is no longer res Integra in view of decision of Supreme Court in Reserve Bank of India -v.- N.C. Paliwal which reads thus :-
"We fail to see how integration of different cadres into one cadre can be said to involve any violation of the equality Clause. It is now well settled, as a result of the decision of this Court in Kishori Mohanlal Bakshi -v.- Union of India that Article 16 and a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause."
Hence, there is no substance in the first contention that rules! are ultra vires.
6. Undisputedly, these Rules are laws. I know no authority which envisages providing for an opportunity of hearing before making a law. Decision referred to above, has also answered this point.
"Thus, the problem was one of fitting into the clerical cadre, employees coming from non-clerical cadres and for that purpose a new rule was required to be made which would determine the seniority of these new entrants vis-a-vis those already in the clerical cadre, Such rule did not affect seniority and hence there can be no question of giving the petitioner an opportunity to make representation against absorption."
7. Cadre and Recruitment Rules of Revenue Department, are framed in exercise of power conferred under proviso to Article 309 of the Constitution of India. Impugned rules which state that notwithstanding anything contained in General Recruitment Rules and Cadre and Recruitment Rules, persons specified in schedule shall be absorbed in Revenue Subordinate Branch incorporate process of absorption as a mode. In Muniyappa Naidu -v.- State of Karnataka Supreme Court held that absorption of Senior Health officers as permanent employees of the Corporation was plainly contrary to express mandate of the Cadre and Recruitment Regulations. Decision except stating absorption is contrary to regulation nowhere stated that absorption cannot be provided in Cadre and Recruitment Rules in exercise of power conferred under proviso to Article 309 of the Constitution of India. Hence, there is no substance in the plea that process of absorption not being one of the mode of recruitment, their absorption is illegal. 1 find no merit in any one of the contentions urged by petitioners in Writ Petition No. 3956 of 1980, hence same is liable to be dismissed.
8. Now coming to the grievance of petitioners in other cases what is rat ant by 'absorption' and consequences of absorption in public interest, has been the subject matter of various decisions of this Court as well as of the Supreme Court. Somnath Iyer, J., (as he then was) speaking for the Bench in Hasabins
-v.- State of Mysore 1967(1) Mys. L.J. 118 has stated thus :
"We think that we should not give the word 'absorbed' occurring in the clause any sharp definition We should give that word a meaning which promotes the legislative intent and fits into the context. The purpose of this clause is to continue by service as employee under the abolished District Board, so that that employee may have an uninterrupted employment either in the Taluk Board or under Government. The restricted power created in Government by that clause is the power to determine whether such absorption should be made by the Taluk Board or by Government. The consequence emanating from such absorption is continuity in service without a break. The abolished District Local Board was established and functioning under the Bombay Local Boards Act, 1923, and its place was taken by the Taluk Board which now functions under the repealing Act. The clear legislative intent which manifests itself in the relevant provisions to the repealing Act to which we have referred was to bring about an assimilation between service under the District Local Board and service under the Taluk Board or under Government as the case may be, by the process of absorption. By such assimilation there is a coalescence and fusion of the two services, and such union make the service in the absorbing unit a continuation of the service in the ether."
(underlining is mine) It is reiterated in K.V. Ballurgi -v.- State of Mysore 1974(1) K.L.J. 168.
9. Last para of first order sanctioning absorption stated, seniority of absorbed personnel in respective cadres of Revenue Department would count from the date of absorption in that department i.e., 28th July 1976, date of issuance of Government Order. Validity of this portion of the order was challenged by various officers. Puttaswamy, J., in Writ Petition No. 12629 of 1977 DD 28-9-1978 Sharanappa -v.- State has held thus :
"Admittedly, the first petitioner has been absorbed in the Revenue Department in the interest of Public service. When that is so, whatever may be the cadre to which the petitioner has been absorbed, he is undoubtedly entitled to count his previous services on his absorption in the Revenue Department. In my opinion, this legal position is no longer in doubt vide A.S. Hasabins -v.- State of Mysore 1967(1) Mys. L.J. 118."
Same is the view of Mahendra, J, in Writ Petition No. 11907 of 1977 Bhimachar -v.- State. Some of the petitioners have made grievance against this last para of Government Order. Instead of quashing that portion in respect of each aggrieved official it would have been possible for me to declare last para of the Government Order, dated 28-7-1976 as illegal and void, but for subsequent rules providing as to know their past services should be reckoned.
Officials of Development Branch and Local Government Breach whose services have been absorbed under former Rules have not made any grievance as their absorption is in conformity with the declaration of law made by this Court. However, insertion of words `from the date of their absorption' in the later Rules absorbing ministerial staff of Taluk Development Board in Revenue Department has created this controversy giving raise to plea that denial of their previous services violates fundamental right guaranteed under Articles 14 and 16 of the Constitution of India.
State has taken an inconsistent stand regarding reckoning of services rendered in Taluk Development Board. In return filed in Writ Petition No. 3956 of 1980, it is stated thus:-
"The Government in exercise of the said power is competent to devise a legal fiction of absorption notwithstanding the Rules of Recruitment of the Revenue Department and the Karnataka State Civil Services (General Recruitment) Rules, 1977. The officials so absorbed in the corresponding posts in the Revenue Department are entitled to count their previous service in the posts held prior to their absorption. There is nothing illegal or unconstitutional in the impugned Rules."
Citing Hasabins's case. State contends that entire services rendered under Local Board should be counted as part of the service.
In return filed in Writ Petition No. 1298 of 1980 and other connected cases this is what is stated at para 11 :-
"As they were not eligible for pension or gratuity in the T.D.B., their service in the T.D.B. cannot be treated as qualifying service for the purpose of pension on their absorption in Government Service. Hence, the exclusion of the past services rendered by the Ministerial Staff of the T.D.B. for the purpose of counting seniority does not offend Articles 14 and 16(1) of the Constitution of India."
In order to resolve this issue, brief reference may be made to changes brought about by Karnataka Village Panchayats and Local Boards Act, 1959. District Boards and District Local Boards which were in existence prior to promulgation of the Karnataka Village Panchayats and Local Boards Act, 1959 stood dissolved and services of personnel working in Local Boards were absorbed either in Taluk Development Board or Government vide Section 242(1) of the Act. As per Rule 3 of Karnataka District Boards and District Local Boards Employees (Absorption in Mysore Government Service) Rules, 1969, services rendered in former District Board and District Local Boards were taken into consideration for the purpose of determining leave, pension and seniority of such persons absorbed in Government service. In Babu and Another -v.- Taluk Development Board, Bijapur and others 1976(1) K.L.J. 334 Jagannatha Shetty, J., has held that as per second proviso to Section 242(1) of the Act, service conditions of employees of former District Boards absorbed in Taluk Development Board services are preserved.
10.Thus, it is clear, previous services of personnel of Ex-District Board and District Local Boards were protected when absorbed in Government service or Taluk Development Board. In case of absorption of officials of Development Branch their previous services were protected as per Rule 3 extracted above. Incidentally,it is necessary to notice that these Rules are promulgated after decision in Writ Petition No.12629 of 1977 wherein this Court has quashed the last para of the Government Order, dated 28th July 1976 as contrary to principles enunciated in Hasabins's case. From scheme of absorption of various officers in Revenue Depart-ment, it is not possible to infer that respondents intend to deny benefit of previous service in respect of employees of Taluk Development Board and confer benefit of previous services in so far as the officials of Development Branch are concerned. Rule 3 of absorption of Development Branch officials is word to word same as Rule 3 of Absorption of Employees of Taluk Development Board except words underlined. It is fallacious to infer that State intends to discriminate and/or intends to treat them differently. Rule 3 of Absorption of Employees of Taluk Development Board must be read as a whole and should be understood in the context in which it is promulgated. Words services rendered under Taluk Development Board by persons mentioned in column No. 2 shall notwithstanding anything contained in any Rules be taken into consideration for determining leave, seniority, pay and pension" should be given its natural meaning. No word or portion of a rule can be treated as inept. If import of rule is understood in the way in which petitioners have understood, to contend that their previous service is destroyed or omitted to be reckoned, above words would become redundant and convey no meaning. Words 'from the date or their absorption' only connotes that on interpolation, those officers should be fitted in seniority/ gradation list as on that day in respective cadres, with reference to services rendered in Taluk Development Boards. It only means, promotions made anterior to date of absorption cannot be reviewed and re-opened on the ground that persons of longer service have come into this cadre by process of absorption. These words are of a descriptive nature with reference to which their rights can be worked out in respective cadres reckoning their services rendered in Taluk Development Board and consequences would be the same even in case of absorption of officials of Development Branch. If words 'from the date of their absorption' had not been preceded by other words extracted above it would have been possible to contend that they have to take a re-birth as on that date in respective cadres. May be, impugned rule is inarticulately worded, but function of the Court is to give effect to its real intendment. Impugned rule, if understood in the above manner, neither there will be destruction of previous services, leave benefit, pensionary benefit nor would it violate equality clause. This is in consonance with the well established cannon on Interpretation of Statutes, which is oft quoted from Maxwell on the Interpretation of Statutes, Twelfth Edition, which reads thus :-
"If the Court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice."
RIGHT OF OPTION
11. Relying on the decision of Supreme Court in State of Mysore -v.- Pampanna Gowda few officers of Taluk Development Board contend that their absorption without providing an opportunity to exercise right of option is illegal and without jurisdiction. On dissolution of District Boards and District Local Boards, personnel working in those establishments are absorbed either in Government service or Taluk Development Board. Section 242 of Karnataka Village Panchayats and Local Boards Act which provides for absorption of such of those officers has not envisaged providing a right of option before absorption. Execution of National Extension Scheme and Community Development Programmes are being entrusted to Block Development Officer who is also a Chief Executive Officer of Taluk Development Board. Necessary funds for develop-ment work are made available by Government. State, in its return, justified impugned action stating that absorption of staff working in Block Offices under Chief Executive Officer is with a view to improve service conditions of such of those officers who have shared their responsibilities and duties in developmental works and to bring them on par with the be them of Development Department. It is stated that Taluk Development Boards had no objection for transfer of such of those officers to Government for purpose of carrying out development works with a sense of utmost urgency and for maintenance of efficiency in administration. It is further contended that their service conditions have been improved with benefit of gratuity and pension as provided under Karnataka Civil Services Rules besides having wider avenues of promotion and in no way disadvantageous nor has it resulted in prejudice. Pampanna Gowda's case was a converse case where petitioner complained denial of status as Government servant and entertained a view that as a civil servant of State of Karnataka, prospects of pro-motion to higher post with better scales of pay were greater in the service of the State with its manifold activities in various departments and with reference to that contention, Supreme Court, quoting relevant provision :-
"In the case before us the Act provides by sub section (5) of Section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board."
held that a right of option was necessary.
12. No rule which affects service conditions is brought to my notice. I do not find any contingency as envisaged in Pampanna Gowda's case. In fact, revised pay rules and most of the provisions of K.C.S. Rs. are adopted by Boards. On giving the matter due consideration, I hold that no prejudice is caused by not giving a right of option, assuming for the sake of argument, it was necessary.
EQUIVALENCE
13. In statement of objections State has justified equation having regard to minimum qualification prescribed for recruitment to the post of an Accountant and First Division Clerk and marginal difference of pay scale of these two cadres. In para 8 of statement of objections in Writ Petition No. 1298 of 1980 this is what is stated: -
"But these Accountants were entitled to retain the pay scales which they held prior to their absorption until they retire on attaining the age of super annotation or until they get promotion to the next promotional post of Taluk Sheristedar, which is a higher post. Since the posts of Accountants were absorbed against the post of First Division Clerks, these petitioners have no posts to hold on in the Taluk Development Boards and they have the choice either to get absorbed in the Revenue Depart-ment or to have their services terminated for want of posts in the Taluk Development Boards."
Minimum qualification required for recruitment of an Accountant and First Division Clerk in Karnataka Panchayats and Taluk Boards Employees (Recruitment and Conditions of Service) Rules, 1961 is a pass in Intermediate or P.U.C. or its equivalent qualification. Maximum pay of an Accountant is Rs. 320/- and that of a First Division Clerk is Rs. 290/-. The Pay scale of First Division Clerk inj Revenue Department is Rs. 130-290 and that of Taluki Sheristedar / Deputy Tahsildar is Rs. 225-450. In Writ Petitions Nos. 2290 and 2368 of 1973 P.T. Ganapathy & Others -v.- M.S. Balagi and others Chandrashekar, C.J. speaking for the Bench has stated thus :-
"Learned Counsel for petitioners are right in contending that when different cadres of services are merged, such merger should be at appropriate levels, i.e., there should be proper equation of cadres before merging them. But, when such integration of different cadres of service, is to be done, the cadres which are merged in such process of integration, will very rarely be equal in all respects like the educational qualifications prescribed for those cadres, the training provided for incumbents in those cadres, nature of duties and responsibilities attached t" those cadres and the pay scales of those cadres. In a sense, equation of different cadres for the purpose of integration, involves equating cadres which are not equal. What case be reasonably expected in such a situation, is equating cadres which are approximately equal and not exactly equal."
Applying the same principles, it must be held that absorption of an Accountant of Taluk Development Board with First Division Clerk of the Revenue Department cannot be said to be unjust or illegal. In Ballurgi's case there is no decision regarding equation in the light of the principles enunciated in Ganapathi's case except directing State to deter-mine equivalence. Hence, I find no substance in the plea that absorption of an Accountant of Taluk Development Board as First Division Clerk in Revenue Department without determining equivalent post is invalid or illegal. In view of elucidation of scope and ambit of Rule 3 of Taluk Board Employees Absorption Rules, there is no basis for apprehension that there is denial of their previous services rendered in Taluk Development Board. Challenge made to these rules is devoid of merit.
14. In the result, these Writ Petitions are dismissed Rule discharged.