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PETITIONER: KERALA STETE ELECTRICITY BOARD

       Vs.

RESPONDENT: N.SUKESEN & ORS.

DATE OF JUDGMENT:       23/07/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) AGRAWAL, S.C. (J)

CITATION:  JT 1996 (6)   575        1996 SCALE  (5)398

ACT:

HEADNOTE:

JUDGMENT:                  THE 23RD DAY OF JULY, 1996 Present:           Hon’ble Mr.Justice S.C.Agrawal           Hon’ble Mr.Justice B.L.Hansaria P.S.Poti, T.L.Viswantha  Iyer, Sr.Advs.,  Ms.Malini Poduval, K.M.K. Nair, Vipin Nair, E.M.S.Anam, Advs. with them for the appearing parties,                       J U D G M E N T The following Judgment of the Court was delivered: Kerala State Electricity Board V. N. Sukesen and Ors.                       J U D G M E N T HANSARIA.J.      Kerala  State   Electricity  Board,   hereinafter   the ’Board’, had  one common establishment prior to 1964. A need having   been   felt   to   have   separate   and   distinct establishment, named  as secretariat establishment, the same came to  be formed  with effect from 1.4.1964, vide order of the Board  dated 31.3.1964.  With a  view to  ensure  smooth functioning of the Secretariat Service so formed, the Board, in exercise  of power conferred by section 79 (c) (k) of the Electricity (Supply)  Act, made  certain regulations  which, inter alia,  laid down  the principle of inte - se seniority in its clause VII reading as below:      ’VII. The inter se seniority of all      categories of  persons so appointed      initially to  the Secretariat  will      be determined  and  finalised  with      reference to  the relative  general      seniority they  held in  the parent      department and  their  services  in      the parent  department  will  count      for all purposes in the Secretariat      Service also." 2.   It was, however, felt that the separate service was not

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conducive to  the smooth  and  efficient  discharge  of  the administrative functions  of the  Board; and  so,  by  order dated 14.1.1981  the separate  and independent status of the Secretariat  Service   was  brought  to  an  end  by  making regulations  called   the  Kerala  State  Electricity  Board (Integration of  Board Secretarial Establishment and General Establishment) Regulations,  1981. In  these regulations the principle of seniority was laid down as below in clause (c):      "5(c).  Subject   to  clause   (f),      relative seniority of persons drawn      from the  Secretarial Establishment      and General Establishment including      Accounts Wing  and holding  equated      posts shall  be determined  on  the      basis of their length of service in      the cadre/category concerned at the      time of integration." 3.   This principle was amended to read as below by order of 7.11.1985 :      "(a) xxx       xxx       xxx      (b)  the   relative  seniority   of      persons drawn  from the secretariat      establishment   and   the   general      establishment     including     the      Accounts Wing  shall be  determined      based on    their  ranking  in  the      advice list  of the  Kerala  Public      Service Commission or the Board, as      the case  may be,  at the  time  of      initial recruitment  by the  Kerala      Public Service  Commission  or  the      Board     to     the     respective      establishments  under   the   Board      subject to the application of rules      regarding  obligatory  departmental      tests."      This virtually  required length  of service to be taken note of for determining inter-se seniority. 4.   The High  Court of  Kerala  was  approached  mainly  by officers of  the erstwhile  Secretariat Service  challenging the revised principle of seniority as laid down in 1985. The High  Court,   by  the  impugned  judgment,  held  that  the principle was  hit by Article 14 as unequals were treated as equals and  has, therefore,  quashed the same. These appeals are by  the  Board  and  by  some  persons  of  the  Genaral Establishment. 5.   Shri Poti  learned senior  counsel  appearing  for  the Board, has  urged that  the High  Court was not justified in setting aside the principle of 1985, as such a principle had indeed been  found valid  by this Court in Om Prakash Sharma vs. Union  of India,  1985 (supp) SCC 218, which was wrongly distinguished by  the High  Court. Shri Iyer, learned senior counsel appearing  by the  private respondents has, however, urged that Om Prakash’s case was different on facts and High Court was  right in  not following  the same  to sustain the principle of inter se seniority as spelt out in 1985. 6. In  our opinion, the decision in Om Prakash’s case has to be applied in the instant appeals as well, because there the accelerated promotion  which some  of the respondents got in the cadre of Head Clerks because of the trifurcation was not required  to   be   given   weight   after   the   different services/departments were  amalgamated again.  Here too, the principle of  inter -  se seniority in the order of 1985 has basically sought to do so the same by requiring the inter se seniority to  be determined  on the  basis of  the length of

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service in  the cadre/category  at the  time of integration, and  not   by  taking  note  no  promotions  earned  in  the Secretariat Service. 7.   We  have   another  reason  to  sustain  the  aforesaid principle and  the same  is that  we are not quite satisfied if, while  forming the Secretariat Service, the selection of the optees  was really  on the  basis of  merit, ability and suitablity as  was required  to be.  We have said so because the Chairman  of the Board, who had played a pivotal role in the selection, had stated before the arbitrator, whose award was pressed  into service by Shri Iyer and to which we shall advert later,  thus :  "No tests  were conducted  for  these appointments nor interviews. The selection for this wing was made by  me taking  into consideration  their fidelity,  the confidence that I can have on them. Only persons known to me were selected". In view of this, the award of the arbitrator dated 14.3.1967  holding that  there was  no  mala  fide  or victimisation while  making actual  selection  is  not  much significant. 8.   Shri  Iyer’s   main  concern  was  that  the  aforesaid principle of  inter-se seniority, if sustained, would result in  reversion   of  the  persons  who  had  got  accelerated promotion in  the Secretariat  Service. This was illustrated by the  learned counsel by drawing our attention to equation of posts  as finding  place at  page 66 of the Paper Book of C.A.No.3974/90, wherein  the post  of Assistant Secretary of the Secretariat  Establishment has  been shown  as equal  to Assistant Accounts  Officer the  next post below whom in the General  Establishment   being  of   Senior  Superintendent. Learned counsel contended that the aforesaid principle would require  reversion   of  the   Assistant  Secretary  of  the Secretariat Service  to Senior Superintendent of the General Establishment, as  the latter may be senior to the former if the ranking at the time of the initial recruitment alone was to be  taken into  consideration. According to  us, however, this is  not the  correct reading of the  principle inasmuch as that  only speaks  about fixation  of relative seniority, and does  not visualise  any reduction in rank of reversion. It may  be that  the following  of 1985 principle would make the Assistant  Secretary of  the illustration  Junior to the Senior  Superintendent,  but  that  would  not  require  the Assistant Secretary  to be  demoted to  the post  of  Senior Superintendent. 9.   In the  aforesaid view  of the  matter,  we  set  aside impugned  judgment   of  the  High  Court,  subject  to  the clarification/observation  made   above.  In  the  fact  and circumstances of  the case, we leave the parties to be their own costs.