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PETITIONER: TAMIL NADU EDUCATION DEPARTMENT MINISTERIAL & GENERALSUBORDI

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ANR.

DATE OF JUDGMENT23/10/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR  379            1980 SCR  (1)1026  1980 SCC  (3)  97  CITATOR INFO :  R          1981 SC1591  (9)  R          1987 SC1527  (35)

ACT:      Civil Service-Integration  of  two  services-Government revising policy-G.O. issued integrating staff of ’A’ and ’B’ Wings of  service, fixing ratio for promotion & principle of computation  f  service  in  determining  common  seniority- Whether permissible and valid.

HEADNOTE:      The State  of Tamil Nadu had schools at various levels, primary, middle and high which were run by the public sector consisting  of   Panchayats,   District   Boards   and   the Government. Progressively,  Panchayat schools  were absorbed by District  Boards and  eventually  those  managed  by  the latter were taken over by the Government. In 1970, the State Government took  a major  policy decisions that all District Board schools be taken over with effect from 1st April 1970. By G.O.M.S.  No. 761  dated 16th  May, 1970 the teaching and non-teaching personnel  were absorbed  as a separate service in the Education Department named the Tamil Nadu Educational Subordinate Service.  The ministerial service, which related to the  non-teaching staff,  also  was  kept  separate.  The direct  consequence  of  the  maintenance  of  two  separate services was that while promotional prospects were available to Government  employees, they  were not  open to the former District Board  servants on their absorption into Government service. This led to agitation and representation.      Government considered  afresh the question, and by G.O. 1786 dated  October 17,  1974 reorganised  the  service,  to provide that  all Government Schools’ servants be called the ’A’ Wing  and the staff of the former District Board Schools be referred  to as  ’B’ Wing  and decided  that as  complete integration of  the be  referred to  as ’B’ Wing and decided that   as    complete   integration   of   the   Wings   was administratively difficult,  they be  kept separate  as  two Wings of  the Tamil Nadu Educational Subordinate Service and the Tamil Nadu Educational Service. The personnel of the ’B’ Wing represented  to the  Government that  ever since  their absorptional as  Government servants  with effect from April 1, 1970  they were  not having  enough promotional  avenues.

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Government  again   examined  the  matter,  decided  to  re- integrate these  Wings and  for this purpose passed G.O. No. 1968 dated  November 2,  1978 which  provided for fixing the ratio between  the two  Wings in the matter of promotion and also the principle for computation of service in determining the common seniority.      In the  writ petitions  to this  Court, the petitioners contended that there was no rational formula for integration of the  two separate  Wings;  the  methods  of  recruitment, qualification and seniority provided for the two wings being different, their integration into a common service cadre and equalisation of  their service  conditions was  violative of Articles 14  and 16.  The ’B’  Wing  personnel  having  been absorbed into  Government service  with effect from April 1, 1970 1027 it was  not permissible  to  grant  seniority  from  a  date anterior to their eligibility as Government servants.      The  State   Government  however   contended  that  the decision for  integration of  the two  wings was taken after examining the matter in great detail and taking into account the number  of personnel of different categories in both the wings and their promotional opportunities.      Dismissing the petitions, ^      HELD: 1. The students who are coached for examinations, the syllabus for such courses and the nature of the teaching are virtually  identical in  the two sets of schools and the qualifications  of  the  teachers  also  resemble.  In  this background, the  State probably  assumed as  inadmissible of contrary argument  that the  quality  of  the  service,  the nature  of  the  qualifications  for  employment  and  other features were de facto identical and consequentially service in District Board Schools and service, in Government Schools could be  legitimately equated  for  purposes  of  reckoning seniority. Mathematical  precision in  equation  is  a  vain chase. [1034 B-C]      2.  In   Service   Jurisprudence   integration   is   a complicated administrative  problem where,  in  doing  broad justice to  many, some  bruise to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to Government without  fussy  forensic  monitoring,  since  the administration has been entrusted by the Constitution to the Executive,  not   to  the   Court.   All   life,   including administrative life,  involves experiment,  trial and error, but within  the leading  strings of fundamental rights, and, absent unconstitutional  ’excesses’, judicial  correction is not right.  Under Art.  32, this Court is the constitutional sentinel, not the national ombudsman. [1031 A-B]      In the  instant case  even if  the  quota  rule  is  an administrative device to inject justice into the integrating process,  the   ratio  cannot  be  arbitrary  nor  based  on extraneous factors. [1031-D]      3.  The   ratio  of   5:3  and  3:2  respectively  were prescribed for  the ministerial  staff and  teaching  staff, taking a  realistic note  of the  total numbers  of the  two equivalent groups  viz. quondom  District Board servants and relative Government  School staff. This is not an irrational criterion when coalescence of two streams springing from two sources occurs. [1030 H]      4. Having  regard to the strength of the District Board staff to  be inducted,  the  ratio  is  rational.  A  better formula could  be evolved,  but the  court cannot substitute its wisdom  for Government’s,  save to see that unreasonable perversity,    mala    fide    manipulation,    indefensible

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arbitrariness  and   like  infirmities  do  not  defile  the equation for integration. [1031 F]      5. All  the schools having been taken over by the State directly the  personnel had  to  be  woven  into  the  basic fabric. Some  relevant formula  had to be furnished for this purpose so  that the  homogenisation did not unfairly injure one group  or the  other. In  1970 Government  chose not  to integrate but  to keep  apart. Later,  this policy was given up. The  court cannot  quarrel if  administrative policy  is revised, nor  strike down  the order because Government have responded to  the question  hour or re-examined the decision at the instance of a sensitive minister. [1031H-1032C] 1028      6. In  the area of equation, an overall view, and not a meticulous dissection, matters. [1033C]      7. Policy is not static but is dynamic and what weighed with  the   Government  when   panchayat  institutions  were amalgamated with  the District Board institutions might have been  given  up  in  the  light  of  experience  or  changed circumstances.  What   was  regarded   as   administratively impractical   might,   on   later   thought   and   activist reconsideration, turn out to be feasible and fair. The court cannot strike  down a G.O., or a policy merely because there is a  variation or  contradiction. What  is important  is to know  whether   mala  fides   vitiates  or   irrational  and extraneous factor fouls. [1034G-H, 1035A]      8. Once  the principle is found to be rational the fact that a  few freak  instances of hardship may arise on either side cannot  be a ground to          invalidate the order or the policy.  However unhappy  it is  to see  the seniors  of yesterday becoming  the juniors  of today,  this is  an area where, absent arbitrariness and irrationality, the court has to adopt a hands-off policy. [1035C-D]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ Petition Nos. 272 and 399 of 1979. (Under Article 32 of the Constitution)      S.V. Gupte  (399/79), S.  Govind Swaminathan  (272/79), K.R. Choudhary and N.S. Sivam, for the Petitioners.      K.K. Venugopal,  Addl. Sol.  Genl.,  A.V.  Rangam,  for Respondent No. 1.      Y.S. Chitale,  A.K. Sen,  P.N. Ramalingam, R. Mohan and A.T. M. Sampath, for Respondents Nos 3-4.      The Judgment of the Court was delivered by      KRISHNA IYER, J.-These two writ petitions under Art. 32 of the  constitution  involve  identical,  though  familiar, constitutional questions based on Arts. 14 and 16 covered by rulings of  this Court.  The setting too is familiar as also the submissions. For these reasons, a brief narration of the facts, a  terse enunciation of the law and a common judgment for both will suffice.      The Tamil Nadu State had schools at the various levels, primary,  middle   and  high,   run  by  the  public  sector consisting of  Panchayats, District  Boards and  Government. Progressively, Panchayat  Schools are  absorbed by  District Boards and,  eventually, those  managed by  the latter  were taken over by Government.      We are not concerned with the teaching and non-teaching staff under  the Panchayats  and their service fortunes when fused into  District Board service, except to notice that in integration, the  date of  entry into District Board service not  the  service  under  the  Panchayat,  was  regarded  as relevant for  purposes  of  reckoning  seniority.  The  next

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operation i.e.  District  Board  staff,  teaching  and  non- teaching being 1029 sewn  into   Government  service   is  what  now  falls  for consideration by  the court.  A few skeletal facts to unfold the basic legal contentions alone need be recounted.      All District  Board Schools were taken over with effect from 1-4-70  and, inevitably,  the issue  of merger  of  the staff confronted Government.      At the  time of issuance of G.O. No. 761 dated 16th May 1970, which  organised the  absorption of  the teaching  and non-teaching  staff   into  Government   services  from  the District Board  service,  Government  decided  to  keep  the personnel  so   absorbed  as   a  separate  service  in  the Educational Department  named  the  Tamil  Nadu  Educational Subordinate Service.  The ministerial service, which related to the  non-teaching  staff,  also  was  kept  separate.  Of course, all  schools to  be opened  after 1-4-70  were to be Government Schools and so the dichotomy between and staff of erstwhile District  Board Schools  and of Government Schools no  longer   persisted.  The   direct  consequence  of  this immiscible maintenance of the two separate services was that the promotional  prospects  then  available  for  Government employees  were  not  open  to  the  former  District  Board servants on  their re-incarnation  as  Government  servants. This,  naturally,   gave  rise   to  heart-burning  and  its manifestation   in    a   democratic    set-up,   agitation, representation and interpellations in the Legislature.      The next  development in  the fortunes  of  the  former District Board Schools’ employees came when G.O. No. 1786 of October 17,  1974 was  issued. Here Government recapitulated the position after 1-4-70 and considered afresh the question of integration  of the two services, the Government Schools’ servants being  called the  ’A’ Wing  and the  staff of  the former District Board Schools being referred to as ’B’ Wing. In  the   considered  view   of  the   Government,  complete integration  of  ’A’  and  ’B’  Wings  was  administratively difficult and so they were kept separate as two wings of the Tamil Nadu  Educational Sub-ordinate  Service and  the Tamil Nadu Educational Service. Certain amelioratory measures were taken  in   opening  up  better  prospects  and  avenues  of promotion for  the new  arrivals  from  the  District  Board Schools. Presumably,  this half-way  house  arrangement  was hardly a  sufficient appeasement,  and Government  was again agitated over  the question.  The pressure of social justice brought  to   bear  on   Government  through  many  channels including the houses of the legislature, persuaded the State to overhaul the entire pattern of integration and 1030 fitment of  the  two  wings  in  a  common  seniority  list. Government ratiocinated on the question thus:           "Ever since  taking over the ’B’ wing personnel as      full fledged  Government servants  from 1-4-70  it  was      being repeatedly  represented  to  Government  that  it      would not  be equitable  to  deny  them  for  ever  the      advantages available  to their  counterparts in the ’A’      Wing when persons of both the wings are doing identical      work and  that the  Government should  consider merging      both the  wings on  some rational  basis. In  both  the      Houses of  the State  Legislature also  many honourable      members have  been repeatedly  urging the Government to      take quick  and pragmatic decision on this long pending      issue. After  examining  the  matter  in  great  detail      taking  into   account  the   number  of  personnel  of      different  categories   in  both   the  wings  and  the

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    promotional opportunities for them, the Government have      proposed to  adopt a formula to integrate the two wings      and attempt to equalise their service conditions to the      extent  possible.   The  Tamil   Nadu  Public   Service      Commission has given its consent to these proposals.           The Government  accordingly now direct, in partial      modification of  the orders in the G.O. Ms. referred to      above,  that   the  staff  of  ’A’  and  ’B’  Wings  be      integrated  with   immediate   effect   following   the      procedure indicated below:"      (emphasis added) Then followed  two important decisions setting the kismat of the two  Wings at  the teaching  and the  non-teaching staff levels. These decisions are castigated in the writ petitions as capricious, arbitrary and traumatic by the ’A’ Wing, i.e. the  teaching  and  non-teaching  staff  of  the  Government Schools. These  two decisions  are, briefly,  (1) fixing the ratio between  the two wings in the matter of promotion, and (2) fixing  the principle  for  computation  of  service  in determining common  seniority. We  are concerned  only  with non-gazetted officers  of secondary  schools in  these  writ petitions. With  regard to  them, different  proportions for promotional consideration  have been  fixed in this G.O. No. 1968. The  ratio of 5:3 and 3:2 respectively were prescribed for  the   ministerial  staff  and  teaching  staff,  taking realistic note  of the  total numbers  in the two equivalent groups viz.  quondom District  Board servants  and  relative Government School staff. This is not an irrational criterion when coalescence  of two  streams springing from two sources occurs. 1031      In Service  Jurisprudence integration  is a complicated administrative problem  where, in  doing  broad  justice  to many, some bruise to a few cannot be ruled out. Some play in the joints,  even some  wobbing, must  be left to Government without fussy  forensic monitoring, since the administration has been entrusted by the Constitution to the Executive, not to the  Court.  All  life,  including  administrative  life, involves experiment, trial and error, but within the leading strings of  fundamental rights, and, absent unconstitutional ’excesses’, judicial correction is not right. Under Art. 32, this Court  is the constitutional sentinel, not the national ombudsman. We  need an  ombudsman but the court cannot make- do.      The feeble  criticism that  the promotional  proportion between the  two wings,  in the  process of  interlacing and integration, is  unsupported by  any rational  guideline  is pointless. The  State’s case  is that when two sources merge it  is  not  uncommon  to  resort  to  the  quota  rule  for promotion, although  after  getting  into  the  common  pool further ’apartheid’  shall be  interdicted save in a limited class with  which we are not concerned here. Of course, even if the  quota rule  is an  administrative device  to  inject justice into  the integrating  process, the  ratio cannot be arbitrary nor  based on  extraneous factors.  None  such  is averred nor  established. The onus is on the challenger and, here, the ratio is moderately related to the numbers on both sides and  we see  nothing going ’berserk’, nothing bizarre, nothing which  makes you rub your eyes to query what strange thing is  this Government doing? Counsel for the respondents explain that  when equated groups from different sources are brought together quota-rota expedients are practical devices familiar in  the field.  Bearing in mind the strength of the District Board  staff to be inducted, the ratio is rational. Maybe, a  better formula  could be  evolved, but  the  court

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cannot substitute  its wisdom  for Government’s  save to see that  unreasonable   perversity,  mala   fide  manipulation, indefensible  arbitrariness  and  like  infirmities  do  not defile the  equation for integration. We decline to demolish the order  on this ground. Curial therapeutics can heal only the pathology of unconstitutionality, not every injury.      The more  serious charge  is that length of service for fixing seniority has inflicted manifest injustice on the ’A’ Wing  i.e.   regular  Government   staff,  being   born   in arbitrariness and fed on mala fides. It is fair to state the generalities and  then proceed  to particularities.  Here we must realise  that all the schools having been taken over by the State  directly the  personnel had  to be woven into the basic fabric. Some 1032 relevant formula  had to  be furnished  for this  purpose so that the homogenisation did not unfairly injure one group or the other.  In 1970 Government chose not to integrate but to keep apart.  Later, this  policy was given up. We cannot, as court, quarrel  if administrative  policy  is  revised.  The wisdom of  yesterday may  obsolesce into the folly of today, even as  the science  of old  may sour into the superstition now, and  vice versa.  Nor can  we predicate  mala fides  or ulterior motive merely because Assembly interpellations have ignited re-thinking  or, as  hinted  by  Counsel,  that  the Education Minister’s  sensitivity is  due to his having been once District Board teacher. Democratic processes-both these are part  of such  process-are not anathema to judges and we cannot  knock   down  the   order  because  Government  have responded to  the Question  Hour or re-examined the decision at the instance of a sensitive minister.      The central  issue is  whether the  engraftment of  the long service  under the  District Board  in  favour  of  the transplanted staff,  rational or capricious, equity-oriented or obnoxious.  The impugned  G.O.  No.  1968  which  is  the cynosure of  attack in these two writ petitions sets out the background history,  current realities and the need to throw open promotional opportunities to the District Board sources stunted  for   long  since   1970.  There  is  reference  to consultation  with   and  consent   of  the  Public  Service Commission which  is usually  the  expert  body  on  service matters. The  experience of  8 years  is available  with the Government  at   the  time   it  promulgated  this  G.O.  It enunciates a policy of integration of ’A’ and ’B’ Wings with immediate effect and outlines the basis on which such fusion is to  be achieved.  A State-wise  seniority list is decided upon, a  desideratum which  is inescapable if integration is to be accomplished.      Government decisions are recorded in this impugned G.O. regarding  the   manner  of   filling  existing  substantive vacancies and  promotion  posts  with  respect  to  teaching posts. Of  course, correspondingly  similar  decisions  were taken for  filling up vacancies by promotion to non-teaching posts. 2:3  in a  cycle of 5 in regard to teaching posts and 5:3 in  a cycle  of 8 in regard to non-teaching posts is the quota-rota decision of Government after appraising itself of the current  lot  of  the  ’transplants’,  the  missed  past opportunities and the burgeoning future promotions.      There  is   a  direction  that  a  combined  State-wide seniority list  shall be  prepared in  accordance  with  the ratios mentioned  and all  promotions thereafter  were to be made out of such combined lists. Some ameliorative provision regarding passing  of tests necessary for promotion has been made in regard to those who have crossed the 45 years 1033

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age mark. This last limb was relied on by Sri Swaminathan to suggest that  there was no total integration between the two services. But we do not read any decisive indication of such a conclusion  from this feeble circumstance. The crux of the matter is  what is  implicit but  not explicit in the order, that in  the  process  of  integration  and  drawing  up  of combined  seniority   lists  the  services  of  the  quondom District Board  employees vis-a-vis  the  Government  School employees District Board service has been reckoned. Can this be done  by a  prudent person  or is it outrageous to equate District Board service with Government service ? That is the question  an   answer  to   which  disposes  of  these  writ petitions.      We need  not delve into details because, in the area of equation, an  overall view, and not a meticulous dissection, matters. The  petitioners have  argued that the selection of Government servants  as teachers  or non-teachers is done by the Public  Service Commission,  which means  screening  and processing by  experts. On  the other  hand, District  Board employees are  appointed on  the chance choice of Presidents pro tempore. The obvious suggestion is that the professional equipment in  the two cases is substantially different. Even on qualifications  it is contended that there is superiority for Government  servants vis-a-vis  District Board employees in schools.  A few other less consequential circumstances of difference are  relied on  in the  writ  petitions.  On  the contrary, the  plea of  the respondents  is  that  there  is substantial similarity in the quality of service and absence of disparity  in the  selection process:  "Like the  Service Commission, the District Board also selected the candidates. As already  submitted, the  language test prescribed for the ’A’ Wing  people is  not a  peculiar feature  for them.  The narration of  the prescribed test and the syllabus therefore for the  ’B’ Wing people would definitely show that ’B’ Wing people had  to  face  onerous  nature  of  examinations.  As regards the  educational qualifications for the teachers are concerned, there  are absolutely  no differences.  In A-Wing even without  a degree in teachers training, a candidate can be appointed  and subsequently  he can  qualify in B.Ed. But whereas for the B Wing teachers, the rules, framed under the District Board  Act stipulates  that for  the post of School Assistant in  a Secondary  School, a  candidate must possess the qualifications  laid down  under the  Madras Educational Rules (the  rule relating  to the appointment of Teachers in schools  maintained  by  local  bodies).  Under  the  Madras Educational Rules  one must  possess a  degree  in  B.A.  or B.Sc., with  B.T. or  B.Ed., as  in the  case of ministerial service, the  teachers also  have to  undergo  a  period  of probation  for   a  period   of  2  years.  Only  after  the satisfactory completion  of probation  for  a  period  of  2 years, they were regularised. Their 1034 increment is  sanctioned only  after such regularisation. In ’B’ Wing  schools a Headmaster or Headmistress must pass the following tests.  If a  candidate who has been promoted as a Headmaster or Head-mistress fails in this subject, he or she will have to face reversion."      The students  who are  coached  for  examinations,  the syllabus for such courses and the nature of the teaching are virtually identical  in the  two sets  of  schools  and  the qualifications  of  the  teachers  also  resemble.  In  this background, the  State probably  assumed as  inadmissible of contrary argument  that the  quality  of  the  service,  the nature  of  the  qualifications  for  employment  and  other features were de facto identical and consequentially service

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in District  Board Schools and service in Government Schools could be  legitimately equated  for  purposes  of  reckoning seniority. In this imperfect world mathematical precision in equation is a vain chase.      Decisions were  cited before  us  by  counsel  for  the respondents to show that this was not an exercise in novelty and even  private college  experience  has  been  considered relevant when  Government has  taken over  such colleges. On the contrary,  counsel for the petitioners pressed before us that  when   Panchayat  schools  were  dovetailed  into  the Education Department of the District Boards the teachers and the non-teaching  staff thereunder  were given no credit for panchayat service  and seniority  was reckoned only from the date of  entry into  District Board  service. Why  should  a different rule  be adopted  when District Board teachers and non-teaching staff  are brought  into Government  service  ? Even  the  ’Fundamental  Rules’  were  cited  to  show  that ordinarily service prior to entry into Government service is discarded. Then  why violate this norm to please the numbers ? This  is the  question put  to Government for faulting the G.O. No. 1968.      Aware of  our jurisdictional limitation we do not agree that the court can analyse such minutiae to fault the policy and quash  the order  of Government, i.e. G.O. No. 1968. For argument’s sake, let us assume that there is a volte face on the part  of the  Government in  shifting its  stand in  the matter of  computation of seniority with reference to length of service.  Surely, policy is not static but is dynamic and what weighed with the Government when panchayat institutions were amalgamated  with the District Board institutions might have have  given up  in the  light of  experience or changed circumstances.  What   was  regarded   as   administratively impractical   might,   on   later   thought   and   activist reconsideration, turn out to be feasible and fair. The court cannot strike  down a G.O., or a policy merely because there is  a  variation  or  contradiction.  Life  is  sometimes  a contradiction and even 1035 consistency is  not always a virtue. What is important is to know  whether   mada  fides   vitiates  or   irrational  and extraneous factor  fouls. It  is impossible to maintain that the  length  of  service  as  District  Board  employees  is irrational as a criterion. Let us assume for argument’s sake that the  mode of selection by the District Boards is not as good as  by the  Public Service  Commission. Even  so it  is difficult to  dislodge the  Government’s position  that  the teachers with  mostly the  same qualifications,  discharging similar functions  and training similar students for similar examinations  cannot  be  equated  from  a  pragmatic  angle without being condemned as guilty of arbitrariness.      Sri Govind  Swaminathan drove  home the  point that  in some cases  even a  few hundred  ’A’ wing  members have been passed over  by some one in the ’B’ wing far junior to them. Once the  principle is  found to be rational the fact that a few freak  instances of  hardship may  arise on  either side cannot be  a ground  to invalidate  the order or the policy. Every cause claims a martyr and however unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an  area where,  absent arbitrariness  and irrationality, the court has to adopt a hands-off policy.      The ’B’  wing members  complain that  they have  really suffered by  being denied  what is due to them on account of length of service all these years after 1970. The boot is in the other  leg, they  lament. Probably, the injustice of the past, when  suddenly set right by the equity of the present,

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puts on  a  molested  mien  and  the  beneficiaries  of  the statutes quo  cry for  help against  injustice to  them. The law, as an instrument of social justice, takes a longer look to neutralise  the sins  of history.  Be  that  as  it  may, judicial power  cannot rush  in  where  even  administrative feats fear to tread.      We see  the force  of  the  petitioners  grievance  and realise that  an alternative  policy may well be fabricated. That is matter for the State and not for the court.      We hold  that the  impugned G.O.  cannot be  voided  as violative of Articles 14 and 16, and, therefore, dismiss the petitions. The parties will bear their respective costs. N.V.K.                                  Petitions dismissed. 1036