IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29149 of 2007(T)
1. LALITHAMMA.K.PANOOSE,
... Petitioner
2. S.S.CHAN BEEVI,
Vs
1. STATE OF KERALA
... Respondent
2. DIRECTOR OF INDUSTRIES AND COMMERCE,
3. M.SALIM,
4. K.N.KRISHNAKUMAR,
5. A.N.SREEDHARAN,
6. K.S.PRADEEPKUMAR
7. R.RAMESH CHANDRAN,
8. T.ABDUL VAHAB,
9. N.MOHANAN,
10. S.SURESHKUMAR,
11. P.S.SURESHKUMAR,
12. SIMON ZACHARIA,
13. D.RAJENDRAN,
14. HELEN JEROME,
15. E.SALAHUDEEN,
For Petitioner :SRI.DEEPU THANKAN
For Respondent :SRI.KALEESWARAM RAJ
The Hon'ble MR. Justice V.GIRI
Dated :23/05/2008
O R D E R
V. GIRI, J.
---------------------------------------------
WP(C).NOs.29149 & 31047 of 2007
---------------------------------------------
Dated this the 23rd day of May, 2008.
JUDGMENT
Common issues arise for consideration in these two
writ petitions and therefore they have been heard together
and are being disposed of by this common judgment. WP(C).
No.31047/2007 is taken as the leading case. The petitioners
entered service as Junior Co-operative Inspectors in the
Industries and Commerce Department. They were promoted
on regular basis as Senior Co-operative Inspectors. They were
then provisionally promoted as Industries Extension Officers.
All the above mentioned posts are included in the Kerala
Industries Subordinate Service and are governed by the
Subordinate Service Rules (hereinafter referred to as the
Subordinate Rules).
2. The post of Assistant District Industries Officer
is one which is comprehended by the Special Rules for the
Kerala Industries Service (hereinafter referred to as the
Rules). The said post is included in category No.2, Class No.V
WPC.29149 & 31047 of 2007 2
and Branch No.1 of the State service. The method of
appointment to the said post as per the special rules is as
follows:-
Assistant District : By transfer from the following
Industries Officer Categories of the Kerala
Industries Subordinate Service:-Industries Extension Officer/
Technical Supervisor.
Senior Co-operative Inspector.
3. Thus the post of Industries Extension Officer,
Technical Supervisor along with Senior Co-operative Inspector
form the feeder category for promotion to the post of Assistant
District Industries Officer. The petitioners were entitled to be
considered for promotion to the post of Assistant District
Industries Officer. Even while continuing as senior Co-operative
Inspectors and as evidenced by Ext.P1, petitioners 1 and 2 were
included in the select list for promotion to the post of Assistant
District Industries Officer. As evidenced by Ext.P3 to P5 orders,
they were promoted as Assistant District Industries Officer and
their probation was also declared as evidenced by Exts.P6 to P8.
Petitioners 3 to 7 were thereafter included in the select list
WPC.29149 & 31047 of 2007 3
published by the Government for promotion to the category of
Assistant Registrar. The first petitioner was included in the select
list for promotion to the post of Project Officer/Deputy Registrar
and he was so promoted. The second petitioner was promoted
as Assistant Registrar.
4. The contesting respondents had entered service as
Technical Supervisors in the Department of Industries and
Commerce. The post of Technical Supervisor was originally
comprehended by the Subordinate Rules (according to the
petitioners). While so, by Government Order dated 6.4.2001,
Ext.R11(b) the Government declared the post of Technical
Supervisor in the department of Industries and Commerce as
gazetted. The Subordinate Rules were amended by Ext.R11(c)
notification SRO.No. 150/2001/ID dated 17.2.2001 with effect
from 1.7.1983. The post of Technical Officer (which is the re-
designated post of Technical Supervisor) was not included in the
Subordinate Rules. But corresponding amendment was not made
in the Rules by incorporating the post of Technical Officer as part
of the state service. In the meanwhile, by the pay revision order
of 1998, the scale of pay of Technical Officer and the Assistant
WPC.29149 & 31047 of 2007 4
District Industries Officer were brought on a par and fixed at
Rs.6675-10550. Prior to the said pay revision order, the scale of
pay of Technical Supervisor was actually higher than that of the
Assistant District Industries Officer, as is evidenced by Ext.R16
(d),(e) and (f) orders.
5. Respondents 3 to 18, as stated above, were
recruited as Technical Supervisors in the Department of
Industries and Commerce. Respondents 3 to 7 were included in
Ext.P2 select list for promotion to the post of Assistant District
Industries Officer for the year 2001, respondents 8,9 and 10
were included in the select list for the same post for the year
2003 and respondents 12 to 18 were not included. The
petitioners categorically assert that respondents 3 to 18 were
promoted as Assistant District Industries Officer subsequent to
the petitioners and therefore respondents 3 to 18 are juniors to
the petitioners in the category of Assistant District Industries
Officer. The petitioners referred to Ext.P14 final seniority list for
the period from 1.1.1997 to 30.6.2001 and Ext.P15 provisional
seniority list of Assistant District Industries Officer’s for the period
from 1.7.2001 to 31.12.2003 and contend that respondents 3 to
WPC.29149 & 31047 of 2007 5
18 are obviously juniors to the petitioners in the post of Assistant
District Industries Officer.
6. While so, the Government issued Ext.P16
Government order GO(MS).88/2007/ID dated 6.7.2007.
Apparently, the said order came to be issued by the Government,
taking note of the direction issued by this court in Ext.R16(g)
judgment dated 4.1.2005 in WP(C).No.14917/2005.
7. The said writ petition was filed by certain persons
working as Technical Officer in the Industries Department seeking
a direction to the Government to approve and issue the
amendment to the Special Rules for the State service in respect
of the post of Technical Officer. Taking note of the admitted
position that the post of Technical Officer has been excluded from
the Subordinate rules with effect from 1983 as evidenced by
Ext.R11 (b) Government order and therefore the necessity to
include the said post in the special rules for the State service, this
court in Ext.R16(g) judgment issued the following directions:
“The Government will consider Ext.P4 and
facilitate grant of the approval to the draft
special rules as requested in Ext.P4
representation in accordance with law, at
WPC.29149 & 31047 of 2007 6
the Government’s earliest and by taking
whatever steps which can be taken from
the side of the Government without causing
any undue delay.”
8. The Government noted that there were 15 posts of
Technical Officers. The post of Technical Supervisor (later re-
designated as Technical Officer) was declared as gazetted and the
said post was excluded from the Subordinate Rules. The said
post is included in the draft Special Rules for the Kerala
Industries Service as feeder category for the post of Assistant
Director. Apparently, taking note of the fact that the scale of pay
of Technical Supervisor and Assistant District Industries Officer
was brought on a par with effect from 1.3.1997, the date of
implementation of the 1998 pay revision order, the Government
ordered that in future the post of Assistant District Industries
Officer shall be the feeder category to the post of Assistant
Director of Industries and Commerce. The Director of Industries
was directed to prepare a combined seniority list of Technical
Officer and Assistant District Industries Officer on inter se
seniority with effect from 1.3.1997. Ext.P16 reflects the decision
on the part of the Government to merge 15 posts of Technical
WPC.29149 & 31047 of 2007 7
Officers with that of Assistant District Industries Officer. Taking
note of Exts.P16, P17 provisional list was published by the
Director of Industries and Commerce on 12.9.2007, respondents
3 to 18 are shown as appointed to the post of Technical
Officer/Assistant District Industries Officer with effect from
1.3.1997 and consequently they are enbloc treated as seniors in
the post of Assistant District Industries Officer’s. It is in these
circumstances, the petitioners have challenged Exts.P16 and P17.
9. The petitioners contend that Ext.P16 order is illegal
and unsustainable on several grounds. Firstly it is contended that
Ext.P16 order runs to the statutory rules relating to the State
Service viz. Kerala State Industries Service Rules. As per the
said Rules, the post of Assistant District Industries Officer is
included in category 2, Class V and the post of Technical
supervisor is one of the feeder categories to the said post.
Assuming that the Government has the power to merge the post
of Technical Supervisor (petitioners do not admit this position)
with that of Assistant District Industries Officer, it can be done
only by an amendment of the statutory rules and not by an
executive order.
WPC.29149 & 31047 of 2007 8
10. It is then contended that the contesting
respondents were recruited to the post of Technical Supervisors
and they were actually considered for promotion to the post of
Assistant District Industries Officer and were promoted as well.
They were promoted pursuant to them being included in the
select list for the said post. They had accepted promotion to the
post of Assistant District Industries Officer and respondents 3 to
18 are juniors to the petitioners in the said post. The said
promotions were effected in accordance with law and seniority in
the post of Assistant District Industries Officer is to be reckoned
with reference to the commencement of service in the said post.
This whole position is now sought to be changed by the executive
order Ext.P16 by deciding to merge the post of Technical Officer
with that of Assistant District Industries Officer with retrospective
effect from 1.3.1997. According to the petitioners, the
Government has clearly acted in an arbitrary manner and even
without jurisdiction in passing Ext.P16 order.
11. A counter affidavit has been filed on behalf of the
first respondent. Separate counter affidavits have been filed by
the contesting respondents. The contentions taken up by them
WPC.29149 & 31047 of 2007 9
are mostly similar. It will suffice to give hereunder the
contentions taken up by the respondents.
12. The respondents point out that the post of
Technical Supervisor should never have been treated as a feeder
category to the post of Assistant District Industries Officer. The
post of Technical Officer was created as per GO(MS)No.127/61/ID
dated 23.2.2961. The qualification prescribed for direct
recruitment to the post of Technical Supervisor was B.Sc Degree
in Mechanical Engineering obtained from the Kerala University or
BE degree in Mechanical Engineering obtained from the Madras
University or equivalent qualification or an Associate Membership
Diploma in Mechanical Engineering obtained from Indian
Institution of Engineers or an equivalent qualification. It is
pointed out that even a person with SSLC who joined as a Co-
operative Officer can aspire for appointment to the post of
Assistant District Industries Officer. At the time of issue of the
special rules for the Industries service, the scale of pay of
Industries Extension Officer and Technical Supervisor was the
same. But subsequently by Ext.R16 (d) order dated 26.9.1995,
pursuant to the request made by the Director of Industries and
WPC.29149 & 31047 of 2007 10
Commerce for allowing the higher scale of pay to Technical
Supervisor who are graduates in Engineering on a par with
professional degree holder in other department, the Government
ordered that the scale of pay of Technical Supervisors of
Industries Department who are graduates in Engineering will be
Rs.2060-3200. This was higher than the scale of pay of Assistant
District Industries Officer. By the pay revision order 1998, the
scale of pay of Technical Officer was revised to Rs.6675-10550.
The same is that of the revised scale of Assistant District
Industries Officer which post was included in the State service.
Though the contesting respondents say that injustice was done to
Technical Officers by equating the post with Assistant District
Industries Officer, (they contend that the post of Technical Officer
should be placed higher to the post of Assistant District Industries
Officer) they contend that by Ext.P16 order the injustice has
been ameliorated to a great extent.
13. It is contended that when the Government issued
the amended Subordinate Service Rules (or issued a fresh set of
rules as the case may be) with effect from 1.7.1983, the post of
Technical Supervisor was not included therein. The post of senior
WPC.29149 & 31047 of 2007 11
Co-operative Inspector and Industries Extension Officer are
included in the Subordinate Service. The State Rules in so far as
it provides for the feeder category to the post of Assistant District
Industries Officer in category 2 Class V will have to be read in
conjunction with the Subordinate Service Rules. Though the post
of Technical Supervisor is included in column No.2 against the
post of Assistant District Industries Officer, the said provision
became unenforceable qua the post of Technical Supervisor when
the same was excluded from the Industries Subordinate Service.
It is contended that only a post which is included in the
Subordinate service could be treated as a feeder category to the
post of Assistant District Industries Officer which is included in
the State Service. A post which is admittedly not included in the
subordinate service and which was eligible to be treated atleast
on a par with that of Assistant District Industries Officer with
effect from 1.3.1997, going by the revised scale of pay brought
into existence with effect from the said date obviously cannot be
treated as feeder category for the post of Assistant District
Industries Officer. In the circumstances it is contended that
what has been done under Ext.P16 order is only what ought to
WPC.29149 & 31047 of 2007 12
have been logically, reasonably and fairly done by the
Government, contemporaneous to the enforcement of the
subordinate rules by GO.(P).No.30/2001/ID dated 17.2.2001.
There is no warrant for interference with Ext.P16 order, contend
the respondents.
14. I heard learned counsel for the petitioners
Sri. Elvin Peter, Sri. Deepu Thankan, Senior Government Pleader
Sri.Nandakumar, learned counsel for the contesting respondents
Sri.P.C.Sasidharan, Sri.S.P.Aravindakshan Pillai, Sri.Kaleeswaram
Raj, Sri.P.Narayanan and Sri.T.A.Shaji.
15. Sri.Elvin Peter vehemently contends that Ext.P16
order is vitiated and unsustainable for more than one reason.
He firstly contends that enforcement of Ext.P16 would result in a
direct conflict with the statutory rules viz. State Rules for the
Industries Service, in as much as the post of Technical Officer
which according to the State Rules is treated as feeder category
to the post of Assistant District Industries Officer has been
merged with the promotion post. In effect, therefore Ext.P16
order amends the statutory rules, according to him. He refers to
the following judgments to contend for the position that executive
WPC.29149 & 31047 of 2007 13
orders issued by the Government under Article 162 of the
Constitution cannot go against statutory special rules. He
submits that executive orders can only supplement or not
supplement but not supplant the statutory rules. The decisions
referred to in this regard are:
(1) State of Maharashtra vs. Jagannath Achyut
Karandikar (AIR 1989 S.C 1133)
(2) T.R.Kapur and others vs. State of Haryana
and others (AIR 1987 S.C 415)
(3) C.L.Verma vs. State of M.P. and another
(AIR 1990 S.C 463)
(4) Pankajakshan vs. State (1996(2) KLT 124)
(5) Ex.Major N.C.Singhal vs. Director General,
Armed Forces Medical Services, New Delhi
and another (AIR 1972 S.C 628)
(6) P.Sadagopan and others vs. Food
Corporation of India and another (1997(4)
SCC 301)
(7) P.Mohan Reddy vs. E.A.A. Charles (AIR
2001 S.C 1210);
and
(8) Vishal Properties (P) Limited vs. State of U.P.
(2007(4) KLT SN.69(SC).
WPC.29149 & 31047 of 2007 14
16. Sri.Elvin Peter contends that assuming that the
Government has power to merge the post of Technical Supervisor
(Technical Officer) to that of an Assistant District Industries
Officer, it can be done only with prospective effect. In merging
the post with retrospective effect from 1.3.1997 the Government
has really tinkered with the vested right of the petitioners to
reckon the seniority in the post of Assistant District Industries
Officer, with reference to the date of commencement of service in
the said post. He then contends that the contesting respondents
have actually been considered for selection to the post of
Assistant District Industries Officer and had been promoted to the
said post, later in point of time to the petitioners. Interse
seniority of the petitioners and the contesting respondents are
governed by the said orders of promotion and such orders have
attained finality. Final seniority list in the post of Assistant
District Industries Officer cannot be tinkered with by an executive
order, which is given retrospective effect.
17. In my view, the first and foremost issue is whether
the order issued by the government is vitiated by an arbitrariness
which is violative of Article 14 and 16 of the Constitution. If the
WPC.29149 & 31047 of 2007 15
answer to the above question is in the affirmative, then the
petitioners are obviously entitled to succeed, without
necessitating a detailed adjudication on the other contentions
raised by the counsel for the petitioners including the one that
the order is in contravention of the statutory rules. Though I
propose to consider each one of the contentions raised by the
counsel as enumerated above, it will be apposite to consider the
question of constitutionality of the order in question in the first
instance.
18. There are certain facts which are either admitted
or not admitted. The post of Technical Supervisor in the
Industries Department was brought into existence by GO(MS)
127/61/ID dated 23.2.1961. It was originally included in the non
gazetted category. The educational qualification for the said
post, as I have mentioned in paragraph 12 above, is principally
a degree in Engineering. Admittedly, it was declared to be a
gazetted post by Government Order GO(MS)No.429/01/ID dated
6.4.2001. Obviously it ought to have been included in the State
Service Rules. The special rules for the subordinate service issued
as per GO(P).No.30/2001/ID dated 17.2.2001 with effect from
WPC.29149 & 31047 of 2007 16
1.7.83 consciously excluded the post of Technical Officer from
the purview of the Subordinate service . At the same time the
post of Industries Extension Officer and senior Co-operative
Inspector are comprehended by the Subordinate rules.
19. It would be advantageous to consider, as to what
could have been logically done by the Government at least
contemporaneous to the enforcement of the subordinate service
rules vide GO dated 17.2.2001. It took a conscious decision not
to include the post of a Technical Officer as part of the
Subordinate service. It will have to be remembered that almost
at the same point of time viz. on 6.4.2001 vide GO(Ms)
No.429/2001 the post of Technical Officer was declared as
gazetted. There is no gazetted post as such included in the
Subordinate service, nor can it be gainsaid that any gazetted post
in the Industries Department is not included in the State Service.
If that be so, in the fitness of things, it would have only been
appropriate that the post of Technical Officer be included in the
State service.
20. Once this position is accepted, then the next
question which arises in the logical sequence of events, is the
WPC.29149 & 31047 of 2007 17
place in the state service where the post of Technical Officer is to
be included. This obviously lies exclusively within the domain of
the Government which also is the Rule making authority. But the
fact which commends itself for acceptance in this regard is that
the scale of pay of Technical Officer has been on a par with that
of an Assistant District Industries Officer with effect from
1.3.1997. As a matter of fact, going by Ext.R16 (d)(e) and (f),
the scale of Technical Officer was higher than that of Assistant
District Industries Officer prior to 1998 pay revision order. Be
that as it may, it is undisputed that the scale of pay of Technical
Officer has been the same as that of the Assistant District
Industries Officer with effect from 1.3.1997. Had therefore the
Government been prompt in taking contemporaneous action on
the post of Technical Officer being declared as gazetted, it would
have been only appropriate for the post of Technical Officer to be
treated on a par with Assistant District Industries Officer, within
the format contemplated by the State Service Rules. In an ideal
situation, amendment to the State Service rules,
contemporaneous to the enforcement of the subordinate service
rules should have followed logically. For some reason there has
WPC.29149 & 31047 of 2007 18
been delay on the part of the Government in effecting appropriate
amendment to the statutory rules to reflect the factual position
as stated above.
21. In this view of the matter I am unable to accept
the contention of the learned counsel for the petitioners that
Ext.P16 order in so far as it directs merger of 15 posts of
Technical Officer with that of Assistant District Industries Officer
in the department of Industries and Commerce with effect from
1.3.1997 should be considered as arbitrary or otherwise violative
of Articles 14 and 16 of the Constitution of India.
22. The principal contention put forwarded by Sri.Elvin
Peter, learned counsel for the petitioners was that Ext.P16 order
obviously contravenes the special rules for the State Service. He
contends that the rules contemplates the post of Technical Officer
as a feeder category to the post of Assistant District Industries
Officer. The situation continues even as on date. Ext.P16 order
behooves that the post of Technical Officer be merged with that
of its promotion post of Assistant District Industries Officer. He
contends that assuming without admitting that it can be done,
the same obviously necessitates an amendment to the special
WPC.29149 & 31047 of 2007 19
rules. This has not been done and therefore Ext.P16 order in so
far as it contravenes the statutory rules will have to be declared
as violative of the statutory rules, according to him. I have
already referred to the decisions cited by him in support of his
contention. As a proposition in law, it could hardly be disputed
that executive orders cannot contravene the statutory rules. The
moot question is whether Ext.P16 order contravenes the
statutory rules as such.
23. I have referred to the relevant portion of the State
Service Rules which provides for the method of appointment to
the post of Assistant District Industries Officer coming under
category 2 in Class V. I have also extracted the relevant portion
dealing with the method of appointment for the purpose of
appreciating the contention of the learned counsel for the
petitioners. There are three posts which are contemplated as
feeder categories for the post of Assistant District Industries
Officer. Going by the above rule, the commonality in these three
posts is that they are categorized under the Kerala Industries
Subordinate Service Rules. Thus going by a literal and purposeful
enforcement of the State Service rules, the post of Industries
WPC.29149 & 31047 of 2007 20
Extension Officer, senior Co-operative Inspector and Technical
Supervisor contemplated as feeder categories to the post of
Assistant District Industries Officer in the State Service must be
posts in the Kerala Industries Subordinate Service. In other
words, the rules for the State service in so far as the post of
Assistant District Industries Officer is concerned provides for the
enumerated categories, included in the subordinate service rules
as the feeder categories. The rule which provides for the method
of appointment to the post of Assistant District Industries Officer
is enforceable qua the enumerated categories of posts which are
included in the Kerala Industries Subordinate Service. There is no
difficulty in the enforcement of the aforementioned rules qua the
post of Industries Extension Officer and senior Co-operative
Inspector because both these posts are squarely enumerated in
the subordinate rules for the Industries service.
24. But the situation is different when it comes to the
post of Technical Officer. The Statutory Rules for the Subordinate
Service simply does not comprehend the post of Technical Officer.
I find considerable force in the submission of Sri.P.C.Sasidharan,
learned counsel for the respondents that one has to read the
WPC.29149 & 31047 of 2007 21
State service rules in a logical and purposeful manner and the
post of Technical Supervisor as occurring in column No.2 in
Appendix 2 in the State Service rules relating to category No.2
Class No.V can only mean the post of Technical Supervisor as
included in the Kerala Industries Subordinate Service.
Therefore, since the post of Technical Supervisor is not included
in the Subordinate service, the above mentioned part of rule in
the State Service will have to be read in such a manner as to
exclude the post of Technical Supervisor from column 2,
Appendix-2 of the State Service rules.
25. There was some dispute in the bar as to whether
the post of Technical Supervisor was ever included as part of the
Subordinate Service. Learned counsel for the contesting
respondents categorically submits that the post of Technical
Supervisor which was later re-designated as Technical Officer was
never included as part of the Subordinate Service in the
Industries Department. It is not necessary to finally determine
whether the post of Technical Officer was included as part of the
Subordinate Service rules, at any point of time. Going by the
subordinate service rules as they now stand, the post of Technical
WPC.29149 & 31047 of 2007 22
Officer is not included in the Subordinate Service at least with
effect from 1.7.1983. It is a matter of significance that the note
to category No.2, Class No.V of Branch (1) of Appendix which
prescribes the ratio among the feeder categories for appointment
by transfer to the post of Assistant District Industries Officer are
also deemed to have come into force on 1st July, 1983.
26. The outcome of the above discussion, in my view is
that the post of Technical Officer would therefore not be
comprehended by the statutory rules for the subordinate service
and therefore would not be comprehended by the method of
appointment relating to the post of Assistant District Industries
Officer as prescribed in the State Rules. The post is created by an
executive order. Further promotion from the said post is not
governed by any statutory rules and therefore Ext.P16 order in so
far as the Government has decided therein to merge 15 posts of
Technical Officer with that of an Assistant District Industries
Officer cannot be considered as a blanket contravention of the
statutory rules as such. I am afraid I am unable to accept the
contention of the learned counsel for the petitioners in this
regard.
WPC.29149 & 31047 of 2007 23
27. Sri. Elvin Peter then contended that vested rights
have been purported to be taken away by Ext.P16 order and to
that extent the order is therefore violative of Articles 14 and 16
of the Constitution. The elaboration made to this aspect is that
every person who is promoted to the post of Assistant District
Industries Officer is entitled to reckon his seniority to the said
post from the date of commencement of his service. He is also
entitled to legitimately expect that inter se seniority of persons
promoted to the cadre of Assistant District Industries Officer will
also be reckoned only on the said basis. By merging the cadre of
Technical Officer to that of Assistant District Industries Officer,
that too with retrospective effect from 1.3.1997, this right which
had accrued in favour of the petitioners has been taken away.
It is contended that the respondents had been promoted as
Assistant District Industries Officer by operation of the special
rules for the State Service and such promotions were governed
by the general rules of the KS and SSR as well. Steps taken
cannot be retraced and settled issues of seniority cannot be
unsettled by an executive order as such.
WPC.29149 & 31047 of 2007 24
28. The contention that vested and accrued rights
cannot be diluted or taken away by an executive order especially
where the field is governed by the statutory rules, obviously is an
argument which does not admit of any equivocation. But how
far is this principle applicable in this case? Is it really a case
where any vested right of the petitioners have been affected
under Ext.P16? The petitioners had a right to be considered for
promotion to the post of Assistant District Industries Officer and
they were so considered and promoted. The petitioners have a
right to insist that their seniority in the cadre of Assistant District
Industries Officer must be reckoned with reference to the
commencement of their service in this cadre. The special rules
indicate the aforementioned rights which are capable of being
described as vested rights and the petitioners are entitled to say
that such rights cannot be diluted or detrimentally affected by an
executive order. A close scrutiny of Ext.P16 will show that it
does not purport or flatter itself to affect any vested right,
conferment of which is governed by statutory rules. Ext.P16 does
not result in the alteration of the date of commencement of the
petitioners’ service in the cadre of Assistant District Industries
WPC.29149 & 31047 of 2007 25
Officer. Ext.P16 further does not also dilute the right of the
petitioners to reckon the seniority with reference to the date of
commencement of the service in the said cadre . What Ext.P16
purports to do and actually does is to provide for the merger of
15 posts of Technical Officers with the post of Assistant District
Industries Officer.
29. I have already found that merger of 15 posts does
not resut in infraction of any statutory provisions. The post of
Assistant District Industries Officer is not comprehended by the
statutory rules of the State service or the subordinate service. As
I have already found, though the post of Technical Supervisor is
mentioned as a feeder category in the 2nd column relating to the
post of Assistant District Industries Officer as contained in the
State Subordinate Rules, the said provision could have been
treated as operative only if the post of Technical Supervisor was
comprehended by the special rules for the subordinate service at
any material point of time. In effect therefore, there was all
along a mistake in treating the gazetted post of Technical
Supervisor/Technical Officer as a feeder category to the post of
Assistant District Industries Officer, within the format of the
WPC.29149 & 31047 of 2007 26
special rules of the State Service or the subordinate service, as
the case may be. If that be so, appointment of any Technical
Officer as Assistant District Industries Officer by treating the
same as promotion was not one as contemplated or regulated by
the statutory rules as such. The statutory rules did not really
contemplate or provide for the appointment of Technical Officer,
as Assistant District Industries Officer by way of promotion from
a lower post to higher post, in a vertical hierarchy. Once this
position is made clear, then it follows that the petitioners cannot
claim a vested right merely on the basis of the fact that the
contesting respondents came to be appointed as Assistant District
Industries Officer later to the petitioners.
30. Referring to the judgment of the Supreme Court in
S.K.Saha vs. Prem Prakash Agarwal and others(AIR 1994
S.C 745), Dr.Pushpa Vishnu Kumar Gurtu vs. State of
Maharashtra and others (AIR 1995 S.C. 1346) and
Chairman, Railway Board and others vs.
C.R.Rangadhamalah and others. (1997(6) SCC 623),
Sri.Elvin Peter contended that inter se seniority of persons
appointed or promoted to the cadre of Assistant District
WPC.29149 & 31047 of 2007 27
Industries Officer are liable to be reckoned with reference to the
date of commencement of their respective service in the said
cadre. This is the purport of Rule 27(a) of the General Rules and
the entitlement of the petitioners to see that inter se seniority is
reckoned in terms of the statutory provisions cannot be taken
away by enforcement of Ext.P16 order. I do not find any force in
the said submission. The crucial distinguishing fact as I have
already is that the post of Technical Officer was not specifically
comprehended by the special rules for the State Service or
subordinate service, as the case may be, at the relevant point of
time. Therefore the appointment of the contesting respondents
(either by way of promotion or by way of transfer as a Assistant
District Industries Officer) cannot be considered as one brought
about by enforcement of the statutory rules. It also cannot be
held that Ext.P16 results in infraction of the statutory rules.
31. The decision cited by Sri.P.Narayanan in Vinay
Kumar Verma and others vs. State of Bihar and others
(1990(2) SCC 647) in my view is apposite to the present
context. The Supreme Court was dealing with the case of merger
of two cadres as such, along with their posts, by an executive
WPC.29149 & 31047 of 2007 28
order. The cadre of District Engineer was created by an executive
order but the cadre of an Executive Engineer was governed by
statutory rules. The two posts in question carried the same scale
of pay. One cadre was governed by statutory rules and the other
by an executive order. Repelling an argument that the merger
has resulted in infraction of the statutory rules, the Supreme
Court held that the statutory cadre of Executive Engineers has
not been interfered with. The post of District Engineers were
merged with that of Executive Engineers and not vice verse. By
the executive order impugned in the said case, the Supreme
Court noted that a group of persons similarly situated have been
brought into service. The Supreme Court noted that the
incumbent in a non statutory cadre, on merger came into a post
born in a statutory cadre along with the post which they were
occupying. The court further noted that the conditions of service
of the existing members of the service have not been
detrimentally affected by the order impugned in this case.
32. The dictum applies on all fours to the facts of the
case. 15 posts of Technical Officers are to be merged with the
cadre of Assistant District Industries Officer by virtue of Ext.P16
WPC.29149 & 31047 of 2007 29
order. The incumbents who come into the cadre of Assistant
District Industries Officer only do so by virtue of the merger of
the post as such. Ext.P16 order by itself does not affect the
existing service conditions of the petitioners or similarly situated
persons who were promoted to the post of Assistant District
Industries Officer, from the feeder categories which are
specifically comprehended by subordinate rules.
33. I also consider it appropriate to refer to the
argument by Sri.Kaleeswaram Raj that the concept of vested
right in the context of inter se seniority will become relevant only
for the purpose of averting reversion as such. The decisions
referred to by him and Sri.P.Narayanana viz. K.S.Vora vs. State
of Gujarat (1988 (1) SCC 311), S.P.Shivprasad Pipal vs.
Union of India and others (1998(4) SCC 598), P.U.Joshi
vs. Accountant General (2003(2) SCC 632) and State of
Tripura vs. K.K.Roy (2004(9) SCC 65) support the stand
taken by the contesting respondents in this regard. Ext.P16
order obviously will not entail the reversion of any of the
petitioners from the cadre of Assistant District Industries Officer.
It is true that there is a possibility of future prospects of the
WPC.29149 & 31047 of 2007 30
petitioners for promotion beyond the cadre of Assistant District
Industries Officer could be detrimentally affected by Ext.P16
order. But that is only as a consequence of the merger of the
Technical Officer with that of Assistant District Industries Officer.
Competence of the Government to do so is beyond challenge.
Reasons which the Government has afforded in justification of the
decision taken by them to merge the post of Technical Officer
with that of Assistant District Industries Officer can by no means
be treated as unreasonable, unfair or untenable. I agree with the
submission of the learned Government Pleader and the learned
counsel for the contesting respondents that by Ext.P16 order the
Government has really done, what ought to have been done
earlier, contemporaneous to the enforcement of the special rules
for the subordinate service, specifically excluding the post of
Technical Supervisor therefrom and the clear indication given in
the pay revision order of 1998 prescribing the same scale of pay
for Technical Officer and Assistant District Industries Officer.
34. No other contentions have been urged by the
petitioners.
WPC.29149 & 31047 of 2007 31
In the result, I find that:
(i) Ext.P16 passed by the Government is not
unconstitutional or illegal.
(ii) Ext.P16 order does not contravene any
statutory provision.
(iii) The said order does not result in divestiture
of any vested rights of the petitioners.
For all these reasons, I am of the view that the writ
petitions are bereft of merit. Accordingly, they are dismissed.
There will be no order as to costs.
Sd/-
V. GIRI, JUDGE.
Pmn/
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