|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indian Central Administrative Tribunal |
Central Administrative Tribunal
Principal Bench
O.A.No.450/2006
And
O.A.No.1609/2006
New Delhi, this the 17th day of April 2007
Honble Shri L.K. Joshi, Vice Chairman (A)
Honble Shri Shanker Raju, Member (J)
OA-450/2006
1. J.T. Sulaxan Rao
s/o late J. Thimothy
r/o O/1 New Minto Road Hostel
New Delhi-2
2. Subhash Chandra Mishra
s/o late Shree Ram Mishra
r/o B 2/231, Sector 6 Rohini
New Delhi-85
..Applicants
(By Advocate: Shri T.P. Mishra)
Versus
1. Union of India through the Secretary,
Ministry of Law & Justice,
Department of Legal Affairs,
IVth Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
2. Member Secretary
Law Commission of India
Department of LA
VIIth floor, A Wing, Shastri Bhawan
New Delhi-1
3. Secretary,
Ministry of Personnel and Training,
Public Grievances and Pension,
North Block, New Delhi.
4. M.K. Sharma
Additional Legal Adviser
Department of Legal Affairs
4th Floor, Shastri Bhawan
New Delhi-1
5. Ashok Kumar
Additional Legal Adviser
Department of Legal Affairs
4th Floor, Shastri Bhawan
New Delhi-1
6. D. Bhardwaj
Additional Legal Adviser
Department of Legal Affairs
4th Floor, Shastri Bhawan
New Delhi-1
7. J.B. Singh
Additional Legal Adviser
Department of Legal Affairs
4th Floor, Shastri Bhawan
New Delhi-1
8. Suresh Chandra
Additional Legal Adviser
Department of Legal Affairs
4th Floor, Shastri Bhawan
New Delhi-1
9. R.S. Shukla
Additional Legal Adviser
Department of Legal Affairs
4th Floor, Shastri Bhawan
New Delhi-1
..Respondents
(By Advocate: Shri T.C. Gupta for respondent 1,
Shri A.K. Bhardwaj for respondents 5 & 6
None for other respondents)
OA-1609/2006
Shri S.N. Terdal
S/o Shri Neelappa Terdal
R/o 5 LF Safdar Hazmi Marg
Bengali Market
New Delhi-1
..Applicant
(Applicant in person)
Versus
1. The Secretary,
Department of Legal Affairs,
Ministry of Law & Justice,
IVth Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
2. The Secretary,
Ministry of Personnel and Training,
Public Grievances and Pension,
North Block, New Delhi.
3. The Secretary,
Union Public Service Commission,
Shahjahan Road, Dholpur House,
New Delhi.
4. Dr. Y.C.P. Dangay,
JS&GC, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
5. Shri Ramji Lal Koli,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
6. Shri S.K. Sharma,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
7. Shri O.P. Shukla,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
8. Shri R.Raghupathi,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
9. Shri Sushil Kumar,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
10. Shri J. Khosla,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
11. Shri R.N. Bandhopadhyay,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
12. Sh. H.C. Rathod,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
13. Smt. Sushma Suri,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
14. Sh. B.S. Meena,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
15. Dr. Santokh Singh,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
16. Sh. M.A. Khan Yusufi,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
17. Dr. S.S. Chahar,
JS&GC, Department of Legal Affairs,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
18. Shri Satish Chandra,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
19. Shri R.Rajangam,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
20. Smt. Pawan Sharma,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
21. Dr. (Smt) Geeta Rawat,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
22. Shri S.K. Sharma,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
23. Shri B.N. Kaithal,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
24. Shri Ram Khiladi Rawat,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
25. Shri Abdul Aziz,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
26. Shri T.N. Tiwari,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
27. Shri M.K. Sharma,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
28. Shri S.K. Mohapatra,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
29. Shri Ashok Kumar,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
30. Shri D. Bhardwaj,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
31. Shri J.B. Singh,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
32. Shri Suresh Chandra,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
33. Shri P.Parameswaran,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
34. Smt. S.Bhattacharya,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
35. Shri Tek Chand Kaushik,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
36. Shri Sidhartha Sankar Sarkar,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
37. Shri V.K. Verma,
Additional Government Counsel,
C/o The Secretary, Department of Legal Affairs,
Ministry of Law & Justices,
4th Floor, A Wing, Shastri Bhawan,
New Delhi-110 001.
..Respondents
(By Advocates: Shri HK Gangwani for Union of India,
Shri AK Shukla for respondent 9
Shri RV Sinha for respondents 18, 22, 23, 26 & 32
Shri Vinod Kumar for Shri SN Pandey for respondent 21 Shri LR Khattana for respondent 33
None for remaining respondents)
O R D E R
Honble Shri Shanker Raju, Member (J):
Cadre restructuring in different Departments under Law Ministry and consequent determination of seniority has created a chaotic situation with claims and counter claims of incumbents of the cadres is the gravamen of issue to be adjudicated by us. A discontentment among the incumbents of various cadres merged in a unified Indian Legal Service (ILS) cadre led to this litigation.
2. As a brief factual matrix, Law Ministry has two main departments of which one is Legislative Department having its own Indian Law Service cadre with their officers having separate seniority in the department. Another wing is the Department of Legal Affairs having Legal Advisors, Law Officers and Government Advocates. Another offshoot is Law Commission where there exists Groups A & B posts of Assistant Law Officers and Deputy Law Officers. Legal Advisors possess professional degree of LLB while the Law Officers generally have academic degree of law, i.e., LLM and the teaching experience without any professional experience, i.e., enrolment in Bar Council. However, the Government Advocates qualification should be minimum service as to passing of examination as an Advocate on record, as they are entitled to draft and sign pleadings to be filed before the Supreme Court on behalf of the Government. These three wings have their separate recruitment rules promulgated in the year 1957, 1986 and 1966 respectively.
3. In the above backdrop, these two OAs raise a common question of law and almost founded on identical facts. For brevity and to avoid multiplicity of litigation and also conflicting decisions, these OAs are being taken up for disposal by this common order.
4. Applicants in OA-450/2006, who are Law Officers in Law Commission of India, were initially selected by the UPSC and appointed as Group A officers under the Law Commission (Groups A & B) Recruitment Rules in the respective pay scales corresponding to Indian Legal Service and Officers of Department of Legal Affairs and Legislative Department. As per the recommendations of 5th Central Pay Commission (CPC) in paragraph 75.13 holding the minimum qualification prescribed with comparable post in ILS and Law Commission being similar and avenues attached to the Services are comparable, it has been recommended to the Ministry of Law to look into the feasibility of merging the cadre of Law Officers and Law Commission in the pay scale of Rs.3000-4500 and above with ILS. A request made on the above recommendations is to mitigate stagnation and redress by creating promotional avenues to merge the cadre of Group A officer in Law Commission with ILS with a further request that such inclusions to be made without affecting the right of existing incumbents of ILS.
5. An order passed by the respondents on 7.1.2003, posts of Joint Secretary, Additional Law Officer, Deputy Law Officer and Assistant Law Officer have been merged with the corresponding post of Joint Secretary and Legal Advisor, Additional Legal Officer, Deputy Legal Officer and Assistant Legal Advisor, respectively in ILS with an observation that seniority of the officers of Law Commission has been maintained as per the instructions of Government of India but while according the seniority on merger, as it has been initiated on the request of Law Commission officers, their seniority would not adversely affect the existing seniority of incumbents of ILS whose interest has been protected and they are given weightage without determination to the seniority. A representation followed on 23.1.2003 requested the authorities for counting their erstwhile service before merger in Law Commission towards their seniority on merger with ILS. A notification issued on 21.3.2003 amended the ILS Rules with insertion of the following provision, as regards seniority holding that on merger of cadre of Law officers of Law Commission with ILS, a seniority shall be determined with the general instruction issued by the Central Government:-
G.S.R. 228(E).-In exercise of the powers conferred by the proviso to article 309 of the Constitution of India, and in order to merge the Cadre of the Law Commission of India with the Indian Legal Service in the Department of Legal Affairs, the President hereby makes the following rules further to amend the Indian Legal Service Rules, 1957, namely:-
(1) These rules may be called the Indian Legal Service (Amendment) Rules, 2003.
(2) They shall come into force on the date of their publication in the official Gazette.
(3) In accordance with the provisions contained in Rule 14 of the Indian Legal Service Rules, 1957, the following posts of the Cadre of Law Officers in the Law Commission of India in the Ministry of Law and Justice, will stand added to the corresponding grades of the Indian Legal Service in the Department of Legal Affairs for being treated as duty posts, as indicated below.
Sl. No. Post in the Law Commission (Department of Legal Affairs) Post in Indian Legal Service (Department of Legal Affairs) Pay Scale
1. Joint Secretary and Law Officer
(1 post Pmt-0, Tem.1) Joint Secretary &Legal Adviser (Grade I)
(14 posts-Pmt.14, Tem.0) Rs.18,400-22400
2. Additional Law Officer (2posts)
(2Posts-Pmt.0, Tem.2) Additional Legal Adviser (Grade II)
(15 posts-Pmt.15, Tem.0) Rs.14,300-18,300
3. Deputy Law Officer(3 posts)
(3postsPmt.0, Tem.3) Deputy Legal Adviser (Grade III)
(19 posts-Pmt.18, Tem.1) Rs.12,000-16,500
4. Assistant Law Officer (5posts) (5 posts-Pmt.5, Tem.0) Assistant Legal Adviser (Grade IV)
(40 Posts Pmt.38, Tem.2) Rs.10,000-15,200
2. The following rule shall be inserted after Rule 11 of the Indian Legal Service Rules, 1957, namely:-
11A. Consequent upon the merger of the cadre of Law Officers of the Law Commission of India Legal Service with effect from the date of coming into force of these amendment rules, the seniority shall be determined in accordance with the general instructions issued by the Central Government in that behalf, from the time to time.
6. A provisional consolidated seniority list issued on 2.5.2003 places the incumbents of Law Commission enblock below the ILS Officers. When this was represented to and no reply had come forth led to filing of OA-2965/2004, which was disposed of on 15.12.2004 directing respondents to pass a speaking order. However, RA-25/2005 was filed, which was disposed of on 4.2.2005. In pursuance thereof, an order passed by the respondents on 5.8.2005 rejected the claim of the applicants on the ground that while merger has taken place, the seniority was stated to be maintained as per the instructions of Govt. of India and as seniority of ILS incumbents was protected as per Rule 11 (A) of the Rules, DOPTs instructions of 3.7.1986, in case of transfer not in public interest, the transferee is to be placed enblock below the officers appointed regularly to the grade, were followed. A reliance has been placed on a decision of the Apex Court in Sushma Mutreja v. Union of India & others, (2001) 6 SCC 428 to contend that when a person is brought from one cadre to another cadre and joins a new cadre, he is to be put at the lowest of the cadre. Accordingly, six Deputy Legal Advisors vide promotion order dated 24.5.2005 have been promoted as Additional Legal Advisors.
7. In OA-1609/2006 the seniority list of ILS officers dated 24.3.2006 and notification dated 10.3.2006 promoting Additional Government Counsel as Joint Secretary and Government Counsel in Grade I of ILS are being challenged.
8. Applicant herein was appointed as Deputy Government Advocate in the cadre of Government Advocates on merger of erstwhile cadre of Government Advocates in Delhi, Kolkata, Mumbai and main Secretariat and also of erstwhile Legal Advisors, which was approved by the competent authority with a note forwarded to the DOPT on 4.8.2003 with the following observations:
As you aware, the Department of Legal Affairs in the Ministry of Law and Justice has under it the Branch Secretariats also at Mumbai, Kolkata, Bangalore and Chennai and Central Agency Section (CAS) in the Supreme Court of India. In this department there are officers of the Indian Legal Service (ILS) in four different grades. Apart from their posting in the aforesaid Central Agency section, they are also liable to be posted in the Branch Secretariats. In the CAS and in the Branch Secretariats there are officers called Government Advocates in different grades like the Indian Legal Service officers. Though both the officers under the Indian Legal Service and those in the Branch Secretariats and the CAS are under the same Department, they have been placed under separate Recruitment Rules. The Branch Secretariats and the CAS have got a small cadre of 22 officers at the following levels:
S.No. Post Pay Scale No. of Post
1. Senior Govt. Advocate 18,400-22,400 1
2. Sr.Central Govt.
Advocate 18,400-22,400 2
3. Govt. Advocate 16,400-20,000 1
4. Addl. Govt. Advocate 14,300-18,300 2
5. Central Govt. Advocate 14,300-18,300 7
6. Deputy Govt. Advocate 12,000-16,500 3
7. Asstt. Govt. Advocate 10,000-15,200 6
2. For some time past, efforts are being made by the Department to have a unified cadre of officers in this department in the interest of better management and control. The question of merger of small cadre of 11 law officers of the Law Commission into the Indian Legal Service of the Department of Legal affairs has been considered in consultation with the Department of Personnel & Training and the UPSC. In this connection attention of DOP&T is invited to their OM No.I11011/3/2002-CRD dated 18.6.2002. The said cadre of the Law Commission has since been merged with the India Legal Service vide Notification GSR No.228(E) dated 21.3.2003, copy of which was endorsed to DOP&T (Estt. RR) also.
3. The matter has been considered in the Department and it is observed that such a merger offers the following advantages:-
(i) Availability of officers with adequate competence from a common Cadre.
(ii) The knowledge obtained while working as Govt. Advocates will be a great advantage in the work of the department as a whole.
(iii) Avoidance of vacancies for long intervals and continuity in the work.
(iv) Training avenues to the officers in the Courts and also in legal advice work.
(v) Uniformity of service conditions among officers of the Department of Legal Affairs.
4. As regards the Government Advocates in the CAS and Branch Secretariats at Mumbai and Kolkata, their scales of pay, qualifications etc. required and the nature of duties discharged by them in the respective grades are comparable to those of the ILS Officers. In the CAS, there is one post of Government Advocate, which is in the pay scale of Rs.16400-20000/- which is less than Grade I of ILS (Rs.18400-22400) and more than Grade II of the ILS (14300-18300). That is to say this post is not falling in any four grades of the ILS. This being the position, the incumbent of this post may temporarily be merged with Grade II of ILS till he will bet promotion to Grade I of ILS and since he is having the scale of pay higher than that of the Grade II, he may be allowed, as a special case, to keep the same scale of pay as personal to him till his promotion to Grade I of ILS.
5. As regards the question of seniority, the officers transferred from Law Commission to the ILS on merger have been placed in existing seniority list of the ILS below the officers already appointed in the respective grades. Therefore, their earlier service, in so far as seniority is concerned, has not been counter although it will be counted for all other purposes such as leave, increment, pension, gratuity, etc. Similarly, the earlier service of the Advocates of the Department in the CAS and the Branch Secretariats in different grades will not count for seniority in the ILS but will count for other benefits such as leave, increment, pension, gratuity, etc, and they will be placed in the seniority list of ILS below the officers already appointed in the respective grades.
6. The designations of the four grades in the ILS in the Department of Legal Affairs are (1) Joint Secretary & Legal Adviser, (2) Additional Legal Adviser, (3) Deputy Legal Adviser and (4) Assistant Legal Advisor. In the Legislative Department the designations of the four grades of ILS are; (1) Joint Secretary & Legislative Counsel, (2) Additional Legislative Counsel, (3) Deputy Legislative Counsel and (4) Assistant Legislative Counsel. Therefore, to bring about a sort of uniformity in the designations of ILS posts in the Department of Legal Affairs an the Legislative Department, it is proposed to redesignate on this merger the posts in the four grades of ILS in the Department of Legal Affairs as under:
1) Joint Secretary & Government Counsel
(2) Additional Legislative Counsel
(3) Deputy Legislative Counsel
(4) Assistant Legislative Counsel
7. As proposed above, the cadre of the Government Advocates in the CAS and Branch Secretariats at Mumbai and Kolkata along with the incumbents may be merged into corresponding scales in the Indian Legal Service of the Department of Legal Affairs. While doing so, the present incumbents will be placed in the Seniority List of ILS below the officers already appointed in the respective grades in which they enter the Indian Legal Service. The Department of Personnel & Training, being the authority for the Recruitment Rules, you may kindly consider the matter urgently and concur in the above proposal of merger in principle. On receipt of your concurrence, UPSC will be consulted.
8. It is also worth mention here that the proposal is in line with the recommendations of the 5th Central Pay Commission of merging isolated posts and disjointed cadres into a service (summary of the Recommendations, para 18, Appendix-I refers).
9. This proposal will not cast any additional financial burden on the exchequer.
10. This proposal has been taken up for examination with the approval of Minister of Law and Justice.
9. Accordingly, a gazette notification was issued on 28.12.2005 whereby the following has been the outcome of merger and re-designation of the post after following the rule of seniority:
MINISTRY OF LAW AND JUSTICE
(Department of Legal Affairs)
NOTIFICATION
New Delhi, the 28th December, 2005
G.S.R.751(E).- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in order to merge the cadres of Advocates of Central Agency Section and Main Secretariat and Branch Secretariats at Kolkata and Mumbai with the Indian Legal Service in the Department of Legal Affairs, Ministry of Law and Justice, the President hereby makes the following rules further to amend the Indian Legal Service Rules 1957, namely:-
1(1) These Rules may be called the Indian Legal Service (Amendment) Rules 2005.
(2) They shall come into force on the date of their publication in the official Gazette.
(3) In accordance with the provisions contained in Rule 14 of the Indian Legal Service Rules 1957, the following posts of Advocates in different grades in the Central Agency Section and Main Secretariat and Branch Secretariats at Kolkata and Mumbai in the Ministry of Law and Justice, will stand added to the corresponding grades of the Indian Legal Service in the Department of Legal Affairs for being treated as duty posts as indicated below.
Sl
No. Place of office/Name of
Post Corresponding posts in Indian Legal Service (Department of Legal Affairs) in which added Proposed revised nomenclature
A. Central Agency Section
(a) Senior Government Advocate (1 post Pmt.)
( Rs.18400-22400) Joint Secretary and Legal Adviser (Grade I) (Rs.18400-22400) Joint Secretary and Government Counsel (Grade I) (Rs.18400-22400)
(b) Government Advocate
(1 post pmt.) (Rs.16400-20000)
Additional Government
Advocate (2posts pmt.) (Rs.14300-18300) Additional Legal Advise (Grade II) (Rs.14300-18300) Additional Government (Grade II) (Rs.14300-18300)
( c) Deputy Government Advocate (3posts pmt) (Rs.12000-16500) Deputy Legal Adviser (Grade III) (Rs.12000-16500) Deputy Government Counsel (Grade III) (Rs.12000-16500)
(d) Assistant Government Advocate (4posts pmt) (Rs.10000-15200) Assistant Legal Adviser (Grade IV) (Rs.10000-15200) Assistant Government Counsel (Grade IV) (Rs.10000-15200)
B Main Secretariat and Branch Secretariats at Kolkata and Mumbai
(e) Senior Central Government Advocate (2Posts pmt.) (Rs.18400-22400) Joint Secretary and Legal Adviser (Grade I) (Rs.18400-22400) Joint Secretary &Government +Counsel (Grade I) (Rs.18400-22400)
(f) Central Government Advocate (6 posts pmt. (Rs.14300-18300) Additional legal Adviser (Grade II) (Rs.14300-18300) Additional Government Counsel (Grade I)(Rs. 14300-18300)
One post of Government Advocate in the Central Agency Section in the scale of Rs. 16400-20000 is temporarily merged with Grade II with scale of pay as personal to its incumbent till he gets promotion to Grade I since there is no parallel pay scale in the four grades of Indian Legal Service.
2. The following rule shall be inserted after Rule 11A of the Indian Legal Service Rules 1957, namely:-
11B. Consequent upon the merger of the cadres of Advocates of Central Agency Section and Main Secretariat and Branch Secretariats at Kolkata and Mumbai, with the Indian Legal Service with effect from the date of coming into force of these amendment rules, the seniority shall be determined in accordance with the general instructions issued by the Central Government in that behalf, from time to time.
As regards the lone post of Government Advocate in the scale of Rs.16400-20000 in the Central Agency Section, the incumbent of the post shall temporarily stand merged with Grade II of ILS with his scale of pay as personal to him till he gets promotion to Grade I of the Indian Legal Service.
10. Applicant represented for counting of entire past service in the past cadre, which was turned down with a seniority list issued on 24.3.2006 where the erstwhile past service of the applicant has not been counted. This has led to the above OA.
11. Learned counsel for applicants in OA-450/2006 filed a written submission and contended that merger of the cadre of Law Commission with ILS is pursuant to the recommendations of 5th CPC where the qualifications have been found similar and the duties comparable between the incumbents of Law Commission and ILS. The seniority of officers of Law Commission should not have been wiped off at the cost of seniority of ILS officers, as Rule 11 (A) of the statutory rules provides that seniority is to be determined in accordance with the general instructions and as per the seniority rules of 1986 issued by the DOPT, the seniority is not to be assigned on the basis of transfer on absorption as a deputationist but on a merger, for which though there is no specific rule, yet the rule of continuous officiation has to be the basis. In this regard, it is submitted that DOPTs instructions in paragraph 3.5 would have no application by transferee officers to be placed below the officers appointed to the grade on the date of absorption as this only applies in a case where the merger is not taken in public interest whereas in the instate case Rule 3.4.1 would have to be reckoned as per recommendations of 5th CPC when duties are comparable and qualifications are identical. In such an event, the past service would have to be taken for computing the seniority.
12. Learned counsel would contend that the order passed by the respondents is a bald order without dealing with the contentions. It is stated that the object of merger was to give effect to the recommendations of 5th CPC, which was in public interest and not at the request of the applicants, as what the applicants had requested is to give effect to the recommendations of 5th CPC without affecting their right of counting the erstwhile service for seniority.
13. Learned counsel has also relied upon the decision of Jawahar Lal Chakravarti & others v. Union of India & others (CWP-5351/2000) decided by a Division Bench of High Court of Delhi on 22.3.2002 wherein the merger of cadre was effected from the date of the order.
14. Learned counsel would contend that once a merger takes place, there has to be an abolition of post in one cadre and creation of additional posts in another cadre whereas in transfer of one incumbent to another department, the post in erstwhile department does not get abolished and exist. A decision of the Apex Court in S.P. Shivprasad Pipal v. Union of India, AIR 1988 SC 1882 has been relied upon to contend that constitution of a unified cadre is always in a public interest.
15. As regards the distinction between the merger and transfer, a reliance has been placed on a decision of the Apex Court in K. Narayanan & others v. R. Mahadev & others v. State of Bihar, [1993] INSC 332; AIR 1994 SC 55 and Union of India v. S.P. Vohra, AIR 2004 SC 1402 to contend that the merger of cadre, as per the statutory rules without any surmises, playing a role.
16. Learned counsel would contend that virtually the merger was of posts in Law Commission into ILS in public interest as a government policy whereas the request of the Law Officers of the Law Commission cannot be isolated as a request on personal side for improvement of promotional avenues. Rule 11 (A) of ILS Rules, which refers to the request by Law Officers of Law Commission on this merger cannot be countenanced.
17. Learned counsel would rely upon the decisions in K. Madhavan & another v. Union of India & others, 1987 (5) SLR 725, B.K. Mohapatra v. State of Orissa, 1988 (1) SLR 88 and in Nirmal Kumar Choudhary & others etc. v. State of Bihar & others etc.[1987] INSC 381; , 1987 (2) SCALE 1385 to contend that principle of determination of seniority in case of merger is entirely different in case of transfer where on merger the entire past service has to be reckoned towards continuing service.
18. Learned counsel has also relied upon the decision of Apex Court in State of U.P. & another v. Surendra Nath Mishra, JT 2001 (10) SC 408 to contend that in case of merger of cadres, if there is nothing indicated in the merger order as of past service of the employees to be wiped off, not reckoning the past service towards seniority would be irrational and arbitrary.
19. Learned counsel would contend that even if assuming that representation has been preferred by the applicants to give them the benefit of recommendations of 5th CPC on merger with ILS, would not amount to waiver or acquiescence in any manner of their right of continuous service to be reckoned towards seniority. In this regard, it is stated that if seniority is to be reckoned as per general instructions and in absence of any rules and instructions on the subject of merger, the decision of the Apex Court would have application and order passed by the respondents while acceding to the merger proposal on 7.1.2003 vide office order No.4, the seniority be maintained as per instructions of Govt. of India when such administrative instructions have force of law as per Article 162 of Constitution of India. The rules framed cannot be contrary to the decision of the respondents and as held by the Apex Court in Nar Singh Pal v. Union of India & others, AIR 2000 SC 1401, one is not allowed barter of fundamental rights on compromise, which is not allowed in the eyes of law. Accordingly, it is prayed that by reckoning the seniority of the applicants in their erstwhile service, a final seniority would be drawn and further promotions would be held or else, it is prayed that any other amicable solution be arrived at to redress the grievances of the applicants, which, maybe, by undoing what has been wrongly done by the respondents and also to consider the plight of the applicants of stagnation and non-promotional avenues in the cadre to be redressed on a legally sound methodology to be adopted.
20. Learned counsel would also contend that as per the Constitutional Bench decision of the Apex Court in Ajit Singh v. State of Punjab, AIR 1999 SC 3471, seniority is a facet of fundamental right under Article 161 of the Constitution and any rule of regulation, which affects or takes away a right is arbitrary, as held by the Apex Court in Sub Inspector Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644. The decision of the Apex Court in Uday Pratap Singh & others v. State of Bihar & others, 1994 Suppl. (3) SCC 451 has also been relied upon to contend that although there is no fundamental right of seniority but the constitutional right guaranteed under Article 14 is to be protected.
21. Learned counsel would further contend by relying upon the decision of Apex Court in Gujarat Steel Tubes Limited etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha & others[1979] INSC 242; , AIR 1980 SC 1896 to contend that for want of any instructions by the Government, law of the land by the Apex Court is binding. A decision of the Apex Court in Kailash Chand & others v. Lt. Governor of Delhi & others, (1977) 3 SCC 27 is relied upon to contend that having merged the two cadres, the logical conclusion would be well recognized rule of seniority of total length of service.
22. In OA-1609/2006, applicant argued his case in person. He contended that merger of post of Central Government Advocate in ILS cadre has been represented to by him on the ground that the competent authority in Ministry of Law & Justice has accorded the approval for such a merger and this was with a view to entitle the Central Government Advocate the benefit of promotion. It was basically for removal of stagnation. Accordingly, it is stated that the Government Advocates have prayed for maintaining their seniority as per the length of service on merger.
23. Applicant has further contended that in his representation dated 27.5.2003, he asked for length of service to be the criteria for fixing the inter-se-seniority in ILS. While referring to Govt. of India, Ministry of Law & Justice OM dated 19.5.2003 views have been sought from him. Accordingly, he prays for counting his erstwhile service.
24. Applicant in person would contend that letter dated 4.8.2003 written by the Ministry of Law & Justice to DOPT clearly indicated that the merger in a unified cadre is in the interest of better management and control, which shows that the merger is in public interest. He would also contend that in such view of the matter when the merger is different in the context of its being in public interest, DOPTs instructions pertaining to seniority issued on 3.7.1986 would have applicability as per paragraph 3.4.1 where the erstwhile service has to be reckoned for the purposes of continuous service reckoning seniority in the merged cadre.
25. Applicant further contends that his right of reckoning 15 years of past regular service cannot be divested away by the Government, which would be violative of Articles 14 & 16 of the Constitution of India.
26. Applicant in person has also contended that Government Advocates are practicing Advocates before joining the service and conducting cases before the High Court and Supreme Court. As such, there has not been any change in requirement of functions as a merger of cadre. Applicant has referred to respondents memorandum issued in 1999 where the Government Advocates have been asked to perform work against equivalent post of erstwhile cadre of Legal Advisor but non-counting of erstwhile seniority on merger is unjust and arbitrary.
27. Whereas respondents have strongly contested the pleas of the applicants. Shri T.C. Gupta, learned counsel for respondent No.1 in OA-450/2006 took a preliminary objection that having given categorical undertaking on a representation that a merger be effected without affecting the right of the existents of ILS, the applicants are now estopped from raising it at a subsequent stage. It is contended that neither the merger nor are the statutory rules challenged, which is an offshoot of a merger, as such the present OA is not maintainable. Doctrine of waiver and acquiescence has been invoked.
28. Learned counsel has relied upon the decision of Apex Court in D.R. Diwan v. State of H.P. & others, (2005) 10 SCC 607 to contend that in the case of merger in unified cadre, no past service is allowed to be counted.
29. Respondent Nos. 5 & 6 represented by Shri A.K. Bhardwaj contended that the official respondents having passed the order dated 5.5.2005, the same has not been assailed and as the prayer is defective, the present OA is barred by limitation.
30. Learned counsel would contend that ILS is an organized Service where induction by later entry is not permissible. A right of those, who are in the ILS cadre, shall not be affected, as the Government Advocates cannot be members of Service of ILS. There has been an invidious discrimination to this, if they loose their right of seniority. Decision of the Apex Court in Uday Pratap Singh & others v. State of Bihar & others, 1995 (1) AISLJ 123 has been relied upon to defeat the claim of the applicants.
31. Another decision of Apex Court in Indu Shekhar Singh & others v. State of U.P. & others, AIR 2006 SC 2432 has been relied upon to contend that in case of fixation of seniority of a transferee in accordance with the principle in SI Rooplals case (supra) would not affect any regular promotion and past seniority would be considered only when either their exists a rule and where recruitment would be from various sources.
32. Learned counsel would contend that having all functional requirements different for ILS and Government Advocates, the merger would operate prospectively, as Law Officers and Government Advocates came to ILS for better prospects with a request of merger by the applicants themselves. The decision in Sat Pal Sharma & others v. The State of Haryana & others, 2002 (1) ATJ SC 631 has been relied upon to contend that having given an undertaking not to claim benefit of past service, claim of restoration of seniority cannot be countenanced.
33. Learned counsel would contend that having given an undertaking, cadre of Law Officers being subvertent cadre, claim of the applicants cannot be countenanced.
34. Respondent No.32 in OA-450/2006 also filed written submissions wherein it is stated that an assurance given to the ILS Officers with their seniority would not be affected on merger of Government Advocates of Central Agency and Branch Secretariat. The representation made by the ILS Officers on 26.3.2003 is yet to be disposed of by the department. It is stated that the nature of duties, essential qualifications, recruitment rules and methods of recruitment of Legal Advisors, Law Officers and the Government Advocates make it dissimilar with ILS and Allocation of Business Rules and the Transaction of Business Rules envisages finalization of proposal with the consultation of DOPT, however, DOPT has not approved such a merger, as it would create administrative problems of seniority. Unless the officers holding isolated posts are recruited through the same examination as those of ILS, process of merger would amount to backdoor entry.
35. Respondent No. 32 has also contended that the policy decision, which generates litigation is bad policy and to rectify it is the compulsion of the judicial conscience and also to perpetuate error, is no heroism as per the decision of Apex Court in Mayuram Subramanian Srinivasa v. C.B.I., (2006) 5 SCC 752.
36. It is stated that the incumbents of Central Agency and Government Advocates are not eligible for the grade of ILS, as ILS has two streams; one constitutes those who give advice and the other one those who draft legislation. When separate seniority for both can be maintained separately, why seniority of Government Advocates and Law Officers of Law Commission should not be maintained separately? However, amending the ILS Rules this requires an amendment in the respective rules to have separate seniority lists for the incumbents of the present with a provision of filling up future vacancies as per the rules.
37. On the other hand, Shri H.K. Gangwani, learned counsel for respondent No.1 in OA-1609/2006 vehemently opposed the contentions and contended that the applicant having not objected to the proposed merger cannot now approbate to claim seniority over existing incumbents. Limitation is also raised as a ground and it is stated that order passed by the respondents on 30.12.2003 has not been challenged.
38. Learned counsel would contend that the letter issued by the respondents on 19.5.2003 is also a notice to the ILS incumbents whose rights were affected.
39. Decision in Sushma Muterjas case (supra) was relied upon to contend that on joining a new cadre, one has to be put at the lowest.
40. Respondent No.9 is represented by Shri Arvind Shukla, learned counsel, who contended that the applicant was not in the cadre of Joint Secretary whereas respondent No.9 was appointed as Deputy Legal Advisor and applicant joined only in 1990. It is stated that the seniority fixed vide order dated 2.5.2003 has not been challenged and as it is a merger, K. Madhavans case (supra) has been relied upon to contend that on merger of cadre of the applicant, Additional Government Advocates were taken into ILS and are designated as Additional Government Counsel but the applicant is still working in the lower cadre with that of answering respondent. It is in this behalf stated that the promotions made prior to 28.12.2005 are sought to be reopened for which applicant has no locus standi. In this backdrop, it is stated that the applicant was not even born in the cadre of Joint Secretary and Government Counsel on the date of merger. As such he cannot claim benefit. Reliance has also been placed on the decision of the Apex Court in Director General, Geological Survey of India & others v. Geological Survey of India Employees Association, 1991 Supp. (2) SCC 89.
41. Learned counsel would also rely upon the decision of the Apex Court in Vinay Kumar Verma & others v. State of Bihar & others, AIR 1990 SC 1689 to contend that since the chances of promotion are not adversely affected, there cannot be any challenge.
42. While distinguishing K. Madhavans case (supra), it is stated that when persons from other sources are drifted to new Service, pre-exist total length of service has to be respected. Term cadre is misconstrued and relying upon SI Rooplals case (supra), it is stated that erstwhile service would be counted for seniority if the two posts are equivalent.
43. Learned counsel has tried to define by established principle of law the term cadre and distinguish it from same Service and cadre on reliance of the decision of the Apex Court (supra).
44. Reliance has also been placed on K. Narayanans case (supra), and it is argued that principle of equality would be disturbed if applicant is allowed to jump over the answering respondent and given a higher post in higher cadre in which the applicant had never worked. It is also stated that criteria of merger being a policy decision cannot be interfered.
45. Learned counsel would contend that the contention of the applicant of performing the similar duties as to Legal Advisor before merger is misconceived.
46. Shri L.R. Khatana, learned counsel appearing for respondent No.33 in OA-1609/2006 contended that Central Government Advocates in Central Agency are on a different footing. It is stated that there has been no undertaking, request or consent of reckoning seniority of ILS cadre above the applicant.
47. As regards order dated 30.12.2003, learned counsel would contend that as the copy is not marked to Central Agency in Supreme Court and to the individuals, there cannot be any challenge to it in accordance with law. As corresponding grades have been created on merger, there has been an implication of equivalence, which has not been challenged by ILS Officers.
48. Respondent No. 21 has filed her application in person. According to her, qualification attached in case of Government Advocates and ILS Officers are quite different and as DOPT has not supported vide order dated 21.11.2003 on the merger of Service and having not filed any reply, it has impliedly not given concurrence to such a proposal.
49. Objecting the merger of three Services in one unified cadre, it is stated that it would not improve the functioning of the Central Agency, Law Commission and ILS but obstruct in functioning of the Central Government Advocates before the court, as these officers, who are basically the Legal Advisors, are not entitled to act or plead in the court of law, as most of them are not even enrolled in the Bar Council and are over aged, their enrolment would be out of question. In this view of the matter, it is stated that if promotional avenues are to be accorded to the Government Advocates and incumbents of Law Commission, a separate unit has to be created and there is no harm in bringing them in ILS cadre with their own unit of seniority, like Legislative Department
with separate rules, which would settle the seniority of existing designated officers and should not unsettle the settled position.
50. Respondent Nos. 18, 22, 23, 26 & 32 are represented through Shri R.V. Sinha, learned counsel. According to Shri Sinha, ILS is an organized Service of 1957 and as service in cadre is not synonymous, there can be different cadres as per FR 94. Seniority is only a civil right. A reliance on Indu Shekhar Singhs case (supra) has been made to contend that on merger, seniority in erstwhile cadre would not be protected.
51. Learned counsel would contend that any general instruction on seniority would not include within its ambit any special instruction and relying upon the decision of the Apex Court in Union of India & others v. Braj Nandan Singh, 2005 SCC (L&S) 1135, it is stated that interpretation has to be done in such a manner that while according seniority the right of ILS incumbents would not be affected and there is no provision of absorption in deputation in the ILS statutory rules. If no Government of India instructions are issued, no direction can be issued and as 30.12.2003 instructions are not challenged, the decision to merge is a decision taken by the Government is not found to be violative of the Constitution of India. A policy decision would not be interfered in the light of the Apex Court decisions in P.U. Joshi & others v. Accountant General, Ahmedabad & others, AIR 2003 SC 2156 and in Ekta Shakti Foundation v. Govt. of NCT of Delhi, AIR 2006 SC 2609.
52. Learned counsel would contend that what has been challenged is only a consequence of merger, which having been accepted by the applicant, he is estopped from taking a contrary plea.
53. Learned counsel would also contend that before such a merger, option of ILS incumbents was not taken and applying the Wednesbury principle of reasonableness, it is agued that having protected their pay scale and grade, applicant would be benefited by promotion. It is also contended that when the rules are not challenged, consequences cannot be challenged. Doctrine of election has been invoked on the basis of decision of Apex Court in Indu Shekhar Singhs case (supra).
54. Learned counsel would also contend that in alteration of service conditions, retrospective effect cannot be given to a person, who has been alien to the cadre.
55. In rejoinder, the applicants in OA-450/2006 contended that since there was no request for merger and also there has been non-application of mind by the authorities to evaluate this public interest, the merger and consequential seniority is not in accordance with law.
56. Applicant in OA-1609/2006 in rejoinder contended that request for merger, which was in public interest, was not to affect the right of others but there is no cessation and waiver of his right to request for counting past service towards seniority.
57. While referring to the decision of merger of the Government Advocates with ILS through letter dated 30.12.2003, it is stated that official respondents have admitted that the same was not published in the gazette and it was not a notification. However, the statutory rules come into being on 28.12.2005.
58. We have carefully considered the rival contentions of the parties and perused the material placed on record.
59. In P.U. Joshis case (supra), the Apex Court ruled that questions regarding constitutional pattern in service, abolition of post, fixing the qualification and condition of service, criteria to be fulfilled for promotion, avenues of promotion, amalgamation of department into one and constitution of categories of post or cadres by undertaking further classification and restructuring of cadres as well as creation of new cadre cannot be challenged to question the authority of the State to amend or alter new rules but with an exception that one such action of the respondents violates any right of the concerned under Articles 14 & 16 of the Constitution, judicial review is open.
60. In Ekta Shakti Foundations case (supra), it is ruled that in judicial review, Court is not an appellate authority to advice the Executive in matter of policy but where the decision taken by the Government is against any statutory provision or is violative of any fundamental right of the citizen, the same would be interfered.
61. In Indian Airlines Limited v. Union of India & another, 128 (2006) DLT 735 (DB), the High Court of Delhi on a merger of Vayudoot with Indian Airlines, as regards policy decision, ruled that the Government of Indias directions, which resulted in determination of seniority, are the policy decision. As administrative authorities are experts in administrative matters, their actions are rarely to be assailed. In nutshell, what has been held is that the policy decision of the Government, except on a limited ground, cannot be assailed in a judicial review.
62. With the above position of law clear in our mind, the term public interest has to be ascertained. Public interest has wider concept and recognized by the Constitution of India. Any action of the Government on its prerogative as a policy decision is the exclusive jurisdiction and discretion of the authorities but the decision-making process is not beyond amenability in judicial review when it is unconstitutional. The term public interest has been defined by the Division Bench of this Tribunal in Sansar Singh Panwar & others v. Union of India & others, (1990) 13 ATC 604 in case of protection of pay where schools have been taken over by the Delhi Administration, the public interest has been defined to be of wider import and in the light of the decision of Constitution Bench of Apex Court in E.P. Royappa v. State of Tamil Nadu & another, an act of arbitrariness offending principle of equality under Article 14, the same has not been found to be apt in law.
63. The concept of individual right and public interest has to be balanced in such a manner that individual right on exercise of the Government in public interest, which is on larger application and importance, should not be chopped off illegally with the underlined principle of law enunciated public interest has to be seen on point of view of the above concept. Admittedly, in Law Commission for want of promotional avenues stagnation persisted. Accordingly, when the 5th CPC was constituted while dealing with the specific grievance of incumbents of Law Commission in its report in paragraph 75.13 held as follows:-
75.13 There are 11 Group A posts, 4 group B posts, 6 group C posts and 32 group D posts in the Law Commission. The group A posts comprise of 5 posts of Assistant Law Officer in the pay scale of Rs.3000-4500, 3 posts of Deputy Law Officer in the pay scale of Rs.3700-5000,, 2 posts of Additional Law Officer in the pay scale of Rs.4500-5700 and 1 post of Joint Secretary-cum-Law Officer carrying the scale of Rs.5900-6700. The minimum qualifications prescribed for comparable posts in the ILS and Law Commission are similar. Even the functions of these two services, though not identical, are comparable. Accordingly, we recommend that the Ministry of Law may look into the feasibility of merging the cadre of Law Officers of the Law Commission in the pay scales of Rs.3000-4500 and above with the ILS.
64. If one has regard to the above, what has been established is the comparable post in Law Commission and ILS with comparable duties led to an examination by the Ministry of Law to merge the cadre of Law Officers in Law Commission with ILS. Accordingly, when such a request was not adhered to for long time, it resulted in acceptance of 5th CPC recommendations on a representation by incumbents of Law Commission to have better avenues when pressed into demand. Though the initial representation had a non-affect over the right of existing incumbents of ILS, the proposal when considered by the Ministry of Law on 7.1.2003, as referred to in its order No.4, the only fact of representation received from Law Officers but the fact of 5th CPC recommendations has not been mentioned. As a result thereof, it is reflected that the merger was initiated at the request of the officers. Accordingly, their seniority would go down below the incumbents of ILS is so misconceived that it had not even taken into consideration the genesis of representation of the applicant in Law Commission, which have, on the basis of comparable post, referred to 5th CPC recommendations. Accordingly, the subsequent representation, which had sought right of the incumbents of Law Commission on merger to compute their past service for seniority in respective grades of ILS, notification dated 21.3.2003 was issued with amendment to ILS Rules and in Rule 11 (A) ibid, seniority has been left to be determined as per the general instructions of Central Government. This has further been represented to by the applicants as to count past service towards seniority, which would be violative of Articles 14 & 16 of the Constitution.
65. In the above view of the matter, the very inception of merger in the present case was taken on premise by the Ministry of Law & Justice as if it is a demand of the employees of Law Commission, which, on the face of it, is repelled by 5th CPC recommendation. It is pertinent to note here that Law Commission has never rejected the recommendations of 5th CPC and rather unified two cadres with comparable post in view of 5th CPC recommendations but in the guise of request of the applicants.
66. As regards the representation of applicants, which has specifically mentioned as to non-affect over the right of the existing incumbents of ILS, would in no manner, indirectly, is a waiver or acquiescence of their individual right to count for their past service. The applicants in Law Commission as a paramount demand wanted better service conditions and creation of promotional avenues but not at the cost of their erstwhile service. The same should have been improved upon by application of Government of Indias instructions issued from time to time to create a safety net to mitigate stagnation in service and on the cardinal principle settled by the Apex Court to have at least few promotional avenues in the service life of a government servant. Without encadrement or merger to another cadre, the same could have been achieved.
67. As regards seniority to be maintained on merger, which was initiated at the request of these officers, the existing seniority as the merger was not in public interest was taken to the bottom of the existing ILS incumbents. As per DOPT OM of 3.7.1986, which has been interpreted subsequently in SI Rooplals case (supra), the seniority of a relative merit has to be reckoned from the date of assumption on a substantive post or from the merit in selection. It appears that an affidavit filed by the official respondents clearly admitted that the seniority of the applicants has been fixed as per paragraph 3.5 of DOPTs guidelines of 1986. Whereas the guidelines issued by the DOPT in 1986 under the title of seniority of transferees in paragraph 3.1 relate to relative seniority of a person appointed by transfer to Central Service from a subordinate office of the Central Government or other departments of the Central or the State. The Apex Court in K. Narayanans case (supra) clearly ruled that in the matter of merger of cadre, a specific order has to be passed whereas transfer is normally effected in the same cadre where the post existed even if transfer of the incumbent but in case of merger, the merged department looses the post on abolition and it is added as an additional strength to the cadre where the merger has taken place. With the result, as per the decision in Vinay Kumar Vermas case (supra) when two cadres are merged, the cadre in which one cadre is merged is enlarged with further availability of vacancies in future to be filled up by way of promotion. Accordingly, as per 5th CPC recommendations the merger has taken place of the post of Law Officer in Law Commission into ILS as a policy of the Government and not on a specific request, as reflected. The cadre in ILS has been enlarged. Accordingly, nothing on the record establishes that this proposal merger was never in existence and it is only the request of the applicants in 2002 has resulted into the merger of Law Commission with ILS. In the above view of the matter, the seniority to the erstwhile incumbents of Law Commission when it is not a transfer within its legal meaning, the provisions for seniority on transfer should not have been applied. In such view of the matter, if the posts are found comparable, then the rule of continuous officiation should have been followed, as held in K. Madhavans case (supra). In the absence of any instruction of seniority on merger in DOPT OM of 1986, the seniority should have been fixed from initial appointment, which pertains to respective grades in Law Commission. In K. Madhavans case (supra) while the Apex Court distinguishing transfer and deputation by treating deputationist as a transferee was found to be against the rules of service jurisprudence. A person with equivalent post if transferred to an equivalent post in another Government Department would not wipe out the length of service from which he has been transferred, which reiterated by the Apex Court in SI Rooplals case (supra). Accordingly, what has to be applied in the case of applicants assuming DOPT instructions as applicable in merger, is paragraph 3.4.1, exception of which is paragraph 3.5 but normal rule is that such a transferee would have to carry in the unified cadre the past service as seniority.
68. Insofar as public interest is concerned, it is not the only object to unify cadres of Law Commission as well as ILS for improving the service conditions of incumbents of Law Commission but also a definite interest of Executive was also involved, which is improving upon the functioning of ILS by induction of incumbents of Law Commission. If both the posts are alien and there is no purpose served to utilize the services of incumbents of Law Commission, being non-comparable in ILS with their counterparts, the aforesaid merger would not have taken place. In such view of the matter, we do not find such a merger not in public interest rather it is the exigency of service and public policy, which is involved to better efficiency of service not only to improve the service conditions of applicants in Law Commission but also the overall administration of ILS to be improved by such an induction is the object for which merger has taken place, coupled with the basis of 5th CPC recommendations, which rules out the concept of merger not in public interest.
69. Seniority as per the decision of the Apex Court in Prafulla Kumar Das v. State of Orissa, 2004 SCC (L&S) 121 has been defined not to be a fundamental right but a civil right. However, the concept of seniority in another Constitution Bench decision of Ajit Singhs case (supra) ruled that seniority is a facet of fundamental right enshrined under Articles 14 & 16 of the Constitution.
70. Even if seniority is to be considered as a civil right, it is a natural consequence of one being in service, which determines either the eligibility of a government servant for his further progression as promotion of which consideration is a fundamental right, is an important component of service conditions, which cannot be overlooked. Apart from it, one acquires even the civil right by virtue of his appointment or promotion to a civil post, any alteration in the existing right without affording a reasonable opportunity to show cause in consonance with the principles of natural justice is also an infraction in law. No doubt, Government has a right to alter prospectively or retrospectively the seniority of a government servant but it has to pass the test of reasonableness and equality enshrined under Articles 14 & 16 of the Constitution.
71. In SI Rooplals case (supra), it is only on the basis of constitutional right guaranteed under Articles 14 & 16 of the Constitution that the deputationist has been allowed to reckon his seniority in the erstwhile grade in an equivalent post to another equivalent post in borrowing department where he is permanently absorbed. Apart from it, the prejudice part is established, on the face of it, when the applicants carrying service of more than 10 years, which inducted as a fresh entrant in the cadre whereas an expert body having concluded the post of Law Commission with that of ILS is comparable. This finding cannot be overreached by the Government and having attained finality, the seniority on the principle in SI Rooplals case (supra) cannot be denied to the incumbents of Law Commission. Rather getting a right of consideration to improve upon the promotional avenues on an induction to an alien cadre, applicants in Law Commission have been put to loss by wiping out their entire service and service rendered in the Law Commission, which they could have carried with them, had there been an amendment in the rules on consideration of their promotional avenues in the same cadre or any other methodology to improve their service conditions, they have been put to loss in merger with ILS.
72. As regards waiver, acquiescence and estoppel, as held by the Apex Court in S.P. Shivprasad Pipals case (supra), relying upon the decision in The State of Maharashtra & another v. Chandrakant Anant Kulkarni & others[1981] INSC 162; , AIR 1981 SC 1990, unification of cadre with comparable post was held to be in public interest as a matter of policy. As held in Narsingh Pals case (supra), fundamental rights cannot bartered away. Concession assuming by the applicants for their inclusion in ILS without affecting the right of existing incumbents, is not a waiver of a right to loose seniority or past service, which they are entitle to, as the transfer allegedly was made in public interest. If the Ministry of Law accedes to have applied as per Rule 11 ibid, the general principle of seniority by adopting DOPT OM of 1986, then paragraph 3.5 of the instructions is not applicable and the transfer is found to be in public interest and paragraph 3.4.1 would have application and in such an event, the erstwhile service has to be reckoned on equivalence of post to the incumbents of Law Commission.
73. It is not allowed to the Government to approbate and reprobate simultaneously. If the existing are to be applied and the proviso is ruled out, then the only principle, which has to be followed as 3.4.1, which is an administrative instruction having force of law, then bringing in the concept of decision of the Apex Court would not be in consonance with law, as the Apex Courts decision would hold the field when either the statutory rules are silent or there are no administrative instructions issued on the subject.
74. As ruled in SI Rooplals case (supra), a fundamental right or a right accrued under the rules, cannot be waived off or acquiesced by an incumbent. Moreover, the representation of the applicants as to counting of their erstwhile service for the purpose of seniority has not been considered at al and this clearly shows that their erstwhile request not to affect the right of existing incumbents of ILS is without prejudice to their right to count their erstwhile service towards seniority by representing for such a grievance, the earlier stand taken has lost its effect and is denuded. Moreover, it was only after the proposal for merger of incumbents of Law Commission into ILS was mooted for the first time the seniority aspect has come into being, which on immediate representation, was objected to, rules out an applicability of principle of estoppel or waiver in the present cases. Government, which is on the upper hand and having bargaining power and prerogative to act, cannot barter the rights of the individual when a decision is taken in public interest, as in the matter of functioning by public functionaries, discretion vested in them is to be exercised judiciously without any arbitrariness or unreasonableness in the action. Government as a model employer and as a welfare State should act to the welfare of the employees, which not only includes in the present cases the interest of incumbents of Law Commission but also the ILS incumbents and in such view of the matter, before taking a decision, balance should have been struck between the rights and interest of both the cadres. It appears that undue haste in the decision had led to rival claims, dispute and ultimately a chaotic situation, which has affected the working of unified ILS cadre, which is neither in the interest of the employees nor in the interest of exigencies of service. If by a decision of the Government dissatisfaction among the employees rises, the action would not be congenial in any manner rather the act would violate inter-se rights of the individuals, which would ultimately offend Articles 14 & 16 of the Constitution. This undue haste of non-application of mind and for want of weigh the prons and cons and repercussions in future, the decision rendered to merge Law Commission with ILS has not only lost its utility but its legality has now in deep waters.
75. Insofar as the objection of limitation is concerned, applicants in OA-450/2006 have assailed an order passed by the respondents on 5.8.2005 whereby their request for grant of seniority has not been acceded to and further the promotions made to their juniors had their erstwhile service been counted in ILS, gives them a valid cause of action and as the application has been filed within the stipulated time, as prescribed under Section 21 of Administrative Tribunals Act, 1985, the objection of limitation stands overruled.
76. It is also assailed that whereas only the consequence of merger has been challenged and there is no challenge as to the order passed proposing the merger on 7.1.2003 or the recruitment rules promulgated thereafter, we are of the considered view that by seeking seniority as per Section 11 (A) ibid, which is on interpretation of DOPT OM of 1986 gives a favourable view to their claim to reckon seniority is independent of challenge to the recruitment rules or merger, otherwise is legal and permissible. We hold that for non-challenge of the rules, no legal infirmity has cropped up in the OAs to be entertained before us.
77. Moreover, in Pramod K. Pankaj v. State of Bihar & others, (2004) 3 SCC 723, the Apex Court ruled that in absence of any statutory provision or rules made under proviso to Article 309 of Constitution, seniority is to be reckoned on the basis of continuous officiation for the lower post from the date of appointment.
78. Also held in Kulwant Kr. Sood v. State of H.P. & another, (2005) 10 SCC 670 that seniority of an employee in absence of rules is determined by an administrative instruction operative in the field suffers from no infirmity.
79. As regards the claim of Government Advocates in OA-1609/2006, preliminary objection as to the limitation, which had already been dealt with in OA-450/2006, yet what has been challenged by the applicant is the circular of respondents dated 24.3.2006 where on pursuant to merger seniority has been assigned without following the relevant rules, which has marred non-counting of erstwhile service to the Government Advocates for reckoning their seniority in the merged cater and a loss of right for consideration of promotion is a reckoning cause of action and the application filed is within limitation under Section 21 of Administrative Tribunals Act, 1985. Accordingly, the objection stands overruled.
80. As far as the objection taken by the respondents as to agreement by the applicants, i.e., Government Advocates as to no objection and no effect over the existing rights of incumbents of ILS is concerned, the invocation of doctrine of acquiescence and waiver is misconceived. As per the Apex Court decision in Krishna Bahadur v. M/s. Purna Theater & others, 2005 (1) SLJ SC 209 while making a distinction between waiver and estoppel, it is ruled that estoppel is not a cause of action but a rule of evidence. Waiver is contractual and constitute cause of action when party knows fully of right has accrued either not to assert it for a consideration. What has been held is also that a right can be waived by a party on a condition or requirement provided by statute, however, subject to condition that no public interest is involved. High Court of Judicature at Allahabad in Mani Kant Gupta & others v. State of Uttar Pradesh, 2004 (1) ATJ 349 on accord of seniority to the absorbee, observed as under:-
5. In S.I. Roop Lal v. Lt. Governor, AIR 2000 SC 594 : (2000 Lab IC 370) the Supreme Court has held when the employee of one department goes to deputation to another department and he is subsequently absorbed in that department he has to be given the benefit of the service in the parent department for the purpose of seniority etc. The Supreme Court has in that decision in fact gone to the extent of saying that if there is any executive order stating that the benefit of past service in parent department will not be given to a person who goes on deputation (and is subsequently absorbed) that executive order will be violative of Arts. 14 and 16 of the Constitution. From this decision it follows that if benefit of past service is not given it will violate Arts. 14 and 16.
6. In Basheshar Nath v. C.I.T., [1958] INSC 117; AIR 1959 SC 149 it was held by the Supreme Court that the fundamental right cannot be waived.
7. In Olga Tellis v. Bombay Municipal Corporation, [1985] INSC 155; AIR 1986 SC 180 it was held by the Supreme Court that although an undertaking was given by the appellants before the High Court on behalf of the hut and pavement dwellers that they did not claim any fundamental right to put huts on pavements or public roads and that they will not obstruct the demolition of the huts after a certain date, they could not be estopped from contending before the Supreme Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood under Art. 21 of the Constitution. From this decision also it follows that a fundamental right cannot be waived, and there can be no estoppel.
8. In Mahavir Oil Mills v. State of J.&K., 1996 (10) JT SC 837 it was held that there can be no question of any acquiescence in matters affecting constitutional rights.
81. In SI Rooplals case (supra), the aforesaid plea of waiver to a constitutional right has been repelled by directing counting of service of the absorbee in the borrowing department on permanent absorption. The following has been held:
7. It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Arts. 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the Memorandum "whichever is later" are held to be violative of Arts. 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored.
8. Before concluding, we are constrained to observe that the role played by the respondents in this litigation is far from satisfactory. In our opinion, after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the inter se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should confine its role to that of an amicus curiae by assisting the judicial forum to arrive at a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, filed review petition, appeal etc. it gives an impression that it is espousing the cause of a particular group of employees against another group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the respondent has taken more than necessary interest which is uncalled for. This act of the State has only resulted in waste of time and money of all concerned.
82. Constitution Bench of Apex Court in Basheshar Nath v. Commissioner of Income Tax, Delhi, [1958] INSC 117; AIR 1959 SC 149, insofar as waiver of rights is concerned, held as follows:
12. The fundamental right, the breach whereof is complained of by, the assessee, is founded on Art, 14 of the Constitution. The problem, therefore, before us is whether a reach of the fundamental right flowing from Art. 14 can be waived. For disposing of this appeal it is not necessary, for us to consider whether any of the other fundamental rights enshrined in Part III of our Constitution can or cannot be waived. We take the view that this Court should not make any pronouncement on any question which is not strictly necessary for the disposal of the particular case be ore it. We, therefore, confine our attention to Art, 14 and proceed to discuss the question on that footing.
13. Article 14 runs as follows :-
''The State shall not deny to any Person equality before the law or the equal protection of the laws within the territory of India.''
It is the first of the five Articles grouped together under the heading "Right to Equality." The underlying object of this Article is undoubtedly to secure to all persons, citizens or non- citizens, the equality of status and of opportunity referred to in the glorious preamble of our Constitution. It combines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Federal Constitution which enjoins that no State shall "deny to any person within its jurisdiction the equal protection of the laws". There can, therefore be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States. Coming then to the language of the Article it must be noted, first and foremost that this Article is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e. g., Art. 19, do. The obligation thus imposed on the State no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited to citizens, but it available to any person within the territory of India. In the third place it is to be observed that, by virtue of Art. 12, " the State" which is, by Art. 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Art. 13. Cl. (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency be void. Likewise . cl. (2) of this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause shall, to the extent of the contravention, be void. It will be observed that, so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles, e.g., Art. 19, cls. (2) to (6). Our right to equality before the law is thus completely and without any exception secured from all legislative discrimination. It is not necessary, for the purpose of this, appeal to consider whether an-executive order is a "law" within the meaning of Art. 13, for even without the aid Art. 13, our right to the equal protection of the law is protected against the vagaries, if any, of the executive Government also. In this connection the observations of Lord Atkin in Eshugbayi Eleko v. Officer Administration Government of Nigeria, [1931] UKPC 37; 1931 A C 662 (A I R 1981 P .C 248) are apposite. Said his Lordship at page 670 (of A C) : (at p. 252 of A I R) that in accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice. That apart, the very language of Art. 14 of the Constitution expressly directs that "the State", which by Art. 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Art. 14 protects us from both legislative and executive tyranny by way of discrimination.
14. Such being the true intent and effect of Art. 14 the question arises, can a breach of the obligation imposed on the State be waived by any person ? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so ? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no, objection to my doing it." I do not think the state will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear,' on the language of Art. 14 that it is a command issued by the Constitution to the State a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.
83. Also held in Shree Mahavir Oil Mills & others v. State of Jammu & Kashmir & another, JT 1996 (10) SC 837 that there cannot be a question of any acquiescence in matters affecting constitutional rights or limitations.
84. Further held by a Constitution Bench of Apex Court in Olga Tellis & others v. Bombay Municipal Corporation & others[1985] INSC 155; , AIR 1986 SC 180 that there cannot be estoppel against the constitution with the following observations:
28. It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfill the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise. that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful State could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate benefits., Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well founded is another matter. But, the argument has to be examined despite the concession.
29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In Basheshwar Nath v. Commr. of Income-tax, Delhi, (1959) Supp (1) SCR 528 : [1958] INSC 117; (AIR 1959 SC 149), a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N. H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.
85. In the light of above, when as per the decision in Ajit Singhs case (supra) right of seniority is an important facet of constitutional right, it cannot be waived by a person. Moreover, as admittedly on the recommendation of Law Commission and also to improve the conditions of service and efficiency in administration, ILS has been expanded on unified cadre, there is a public interest involved. In such an event, the contention that the applicants having consented to merger, they, though initially have written for their no objection, however, without affecting the existing right of the ILS incumbents, yet specifically they have not abandoned their right of seniority and subsequently through representations, which are on record, applicants and other similarly circumstanced have requested for grant of seniority by counting their erstwhile service on merger, is a clear proof that neither any waiver was existed nor has estoppel or acquiescence applicability in the present cases. Accordingly, the aforesaid contention raised is rejected at the outset as not entertainable in law and rather misconceived.
86. We also find that all the incumbents of ILS through their association on 7.12.2006 forwarded a Resolution to the Secretary, Ministry of Law &Justice whereby they have asked for de-merger on the ground that neither ILS incumbents nor the incumbents of Law Commission and Government Advocates of Central Agency were not satisfied with the grant of seniority and as unwanted litigation has to be given rise and vested rights have been affected, de-merger is the only solution, which is advantageous and beneficial to all.
87. We have also been apprised that challenging the merger, certain OAs have been filed before the Tribunal by the ILS Officers, which are sub judice.
88. As regards policy decision and interference by us in judicial review, no doubt, the decisions in Ekta Shakti Foundations case (supra) and P.U. Joshis case (supra) have elaborately dealt with it but the only exception when a policy decision can be interfered is when concept of acquittal is infringed and right under constitutional provision is affected. In the present cases, right of seniority deeming to be a transfer in public interest accords as per the DOPT OM of 1986 as well as the decision of the Apex Court in SI Rooplals case (supra) to the merged category, their right to carry forward within the continuous service for reckoning the service. In such view of the matter, the decision of the respondents though inserting Rules 11 (A) & (B) ibid in the respective rules of merger, which operates seniority as per the Government of India instructions, non-following these instructions in true letter and spirit and not to count erstwhile service of the merged category in ILS is certainly an infraction to their constitutional rights and rights accorded to them under the administrative instructions, which are force of law and as admittedly govern the grant of seniority, this decision to merge is very much amenable in judicial review and the decision cited, the present cases being an exception would be distinguishable.
89. Insofar as non-comparable duties of the Central Government Advocates and others in ILS, as regards Government Advocates, are concerned, their designation, which were earlier Government Advocates is changed to Government Counsel with the same duties and responsibilities attached to the post and the job content having not altered, it is almost a comparable post where the merger has taken place and in such an event, the contention that the posts are not equivalent should have been considered before the merger by the Government in its own wisdom but having done so and changing the nomenclature of the applicants, it does not lie in their mouth and they are estopped from approbating and reprobating simultaneously, which is not a role model with the Government when an action has been taken in public interest to merge both the categories.
90. We also find that Governments notification dated 30.12.2003 has not been validly served upon the applicants and as no copy has been marked, as such this objection also cannot be countenanced.
91. As per the RTI information sought clearly it is pointed to the aforesaid.
92. We also find on record the letter written by the Ministry of Law & Justice to the DOPT whereby Branch Secretariat and Central Agency being merged into ILS, it is impressed that to have the unified cadre officers in the department in the interest of better management and control, the question of merger of Law Commission Officers into Legal Service of Department of Legal Affairs, was considered. This is a clear proof of the fact that the merger has been done in public interest but on the question of seniority, though the other benefits of continuous service, such as, leave, increment, pension and gratuity have been accorded to the merged category, i.e., Law Commission and Central Agency incumbents, yet depriving them of seniority is highly illogical and irrational in the light of DOPT OM of 1986, which in public interest allows such a seniority to be counted.
93. We also find that DOPT has not approved the merger, yet the same has been accomplished would show that there has been undue haste in the present cases, which has resulted in such a chaotic situation.
94. The decision of Apex Court in Anand Chandra Dash v. State of Orissa & others, AIR 1988 SC 713 ruled that in case of a condition imposed on joining a new department to count service from the date of joining has been repelled by the Apex Court by holding that past service has to be taken into consideration.
95. In SI Rooplals case (supra), the aforesaid has been reiterated.
96. In K. Madhavans case (supra), the concept of seniority to a deputationist has been made clear by holding that continuous service cannot be washed off.
97. Sushma Mutrejas case (supra) is distinguishable on the ground that Rules 11 and 12 ibid were existed, which had barred counting of such seniority and an observation in the decision as to when a person is brought from one cadre to another has to be treated in the lowest in the cadre, no seniority rules of 1986 were in existence and as the administrative extractions having force of law has not been considered therein, in a peculiar fact situation, the order would be per incuriam to the present cases and is distinguishable as well.
98. As regards the decision in Satpals case (supra) of High Court when it was agreed between the two Governments that teachers absorbed in different schools by transfer, the unequivocal undertaking not to claim benefit of past service was present but in the present cases, the past service has not been washed off by the respondents, it will count for all other purposes, except for seniority, for which the applicants have specifically prayed for as per the administrative instructions, the decision would be distinguishable.
99. Insofar as the decision cited in APSRTC & others v. V. Veeraiah, 2000 (2) SLJ 122 is concerned, the aforesaid decision was a request transfer, which has denied the seniority.
100. In the matter of Karampal & others v. Union of India, [1985] INSC 48; (1985) 2 SCC 457, the contention raised that in absence of challenge to rules and regulation resulted on situation flowing are not open to challenge, would have no application in the present cases, as the applicants have admittedly not challenged the merger but they have challenged the inaction of the respondents not to have applied DOPT OM of 1986, which allows in a case of public interest counting of past service towards seniority, decision would be distinguishable.
101. The decision in Uday Pratap Singhs case (supra) cited by the respondents to the fact that by an Executive order, the rules cannot be whittled down, would have no applicable in the present issue, as for want of any recruitment rules, the recruitment rules of merger when referred to DOPT guidelines, the same has statutory force of law. The decision in Anil Kumar Vitthal Shete & others v. State of Maharashtra & another, AIR 2006 SC 2018 as to right of State to merge different cadres, there was existence of recruitment rules but in the present cases though the policy has merged cadres in ILS, yet the instructions are very much applicable and provides counting of past service, as the merger was taken in public interest.
102. The decision in S.P. Shivprasad Pipals case (supra) where on merger and power of judicial review, though merger is considered essentially a matter of policy, the question was right of promotion affected and as there were seniority rules applicable, the contention was repelled but in the present cases, as administrative instructions of 1986 govern the seniority of merged category, the decision would have no application.
103. The decision in Braj Nandan Singhs case (supra) deals with entirely a different situation on forfeiture of service on resignation, which would not be applicable.
104. As regards the decision in Indu Shekhar Singhs case (supra), though the conditions of service and right of election exercised would not apply in the present situation, as the applicants have asserted their right to count their erstwhile service, which is in consonance with OM of 1986 and as the difference between transfer and deputation was made in the decision, yet past service would be directed to be maintained towards seniority when there exists a rule directing consideration of seniority. In such an event, rather decision in Indu Shekhar Singhs case (supra) would have applicability to the extent that for want of statutory rules when a specific admission of the Ministry of Law as to counting of service of the merged category is to be in accordance with DOPT OM of 1986, the same would have applicability and as the merger has taken in public interest, erstwhile service would have be counted towards seniority.
105. Lastly, the decision in K.P. Sudhakaran & another v. State of Kerala & others, (2006) 5 SCC 386 in a case of request transfer from one cadre to another in the light of the statutory rules, the seniority was reckoned from the date of joining the new department. However, it is also ruled in the said decision that where statutory rules govern the field, Executive instructions cease to apply. In the above context, present are the cases where though the proposal mooted for merger of Law Commission and Government Advocates in Central Agency and Secretariat, though contained a provision for no effect over the seniority of existing incumbents of ILS, yet in the recruitment rules seniority on merger was to be determined as per the instructions of Govt. of India, which has been made force of law or a statutory provision to govern seniority. As per this DOPT instructions having found the merged in the public interest, erstwhile service has to be protected and reckoned for the purposes of seniority in the merged category.
106. We could have issued a mandamus directing official respondents to act in accordance with statutory rule and DOPT instructions of 1986 to reckon the erstwhile service of incumbents of Law Commission and Government Advocates towards seniority but we have also a category of litigants before us as private respondents, who are incumbents of ILS. Their objection to the merger having not been paid any heed to by the Ministry of Law, their rights are prejudicially affected.
107. If we do not question the prerogative of Executive to merge different categories and to unify them but this unification of cadre should not result in deprivation of any vested rights to the employees or should not be against constitutional facets and rights guaranteed to the parties. On its ipse dixit without weighing pros and corns and without evaluating the repercussions in future even a policy decision in the guise of discretion has to be a balanced exercise by the Government and should be judicious. Now a situation has arisen where the right of merged category, i.e., Law Commission and Central Advocates have a right to reckon their erstwhile service as seniority would steel march over the existing ILS incumbents, who are settled in their cadre with all promotional avenues available to them. They will be victims to the aliens. It is settled law that when a policy decision affects constitutional rights in a judicial review, the only direction, which can be issued by the Courts is to afford an opportunity to the Government to undo the wrong and on damage control exercise, reconsider the matter, as held by the Apex Court in Union of India & others v. K.S. Okkutta, (2002) 10 SCC 266.
108. Being a model employer, Government is not averse to interests of employees working under it belonging to different cadres but should not be oblivious of the rights of such employees and on a balanced equation if assertion of right and its implementation thereof, a particular category interferes in the right enjoined by another group, it should be so balanced that without affecting the right of each other, a viable media should be found out, so that interest and rights of both can be safeguarded to maintain congenial atmosphere in working of the Government, which would be in the interest of exigencies of administration and smooth functioning of the Government. Cadre of ILS is also not satisfied with the aforesaid merger, which had disturbed their rights as well. No doubt, non-availability of promotional avenues in a cadre, any steps taken to redress by the Government to crate promotional avenues is in their interest but if this interest clashes in implementation thereof with the right and interest of others, a methodology should have been adopted, which would have without disturbing the right of either party amicably achieve the purpose without any inter-se dispute between the employees of the cadres.
109. We are not to suggest ways and means to the Government but as we have been made aware that ILS cadre has requested for de-merger, it is at the wisdom of the Government on reconsideration of the entire issue to take steps, which are in consonance with law and not averse to the rights and interests of their employees, irrespective of the cadre. We are also aware that subsequent to merger without reckoning the past service of merged category, certain promotions have been ordered, which are impugned along with seniority list but as we are sending back these matters to the Government for reconsideration in the light of observations made by us, we would not like to disturb these accrued benefits to the employees, which may be subject to the final decision taken by the Government. Our paramount consideration is to impress upon the Government to resolve this dispute, genesis of which is the creation of the Government.
110. In the result, both these OAs are disposed of with a direction to the official respondents to reexamine the entire matter in right perspective and in the context of the grievance raised by the erstwhile incumbents of Law Commission, Government Advocates of Central Agency and ILS cadre and thereupon, keeping in view our observations, take a conscious decision to redress the grievances of applicants and private respondents as well. The aforesaid exercise shall culminate into a final decision taken through a well-reasoned speaking order to be passed within a period of three months from the date of receipt of a copy of this order. No costs.
Let a copy of this order be placed in each file.
( Shanker Raju ) ( L.K. Joshi )
Member (J) Vice Chairman (A)
/sunil/
LIIofIndia:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.liiofindia.org/in/cases/cen/INCAT/2007/520.html