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PETITIONER: S.P. SHIVPRASAD PIPAL

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       15/04/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      This appeal  arises from  a judgment  and order  of the central Administrative  Tribunal at new Delhi dismissing the application filed  by the  appellant who was at the material time, labour Commissioner working in the Ministry of labour. The appellant  has challenged  the constitution of a Central Labour Service under the Central Labour Service Rules, 1987, issued by  the President in the exercise of powers conferred on him under the proviso to Article 309 of the constitution. The Central  Labour Service  Rules, 1987  were brought  into force by a notification dated 3.2.1987.      Under the  notification of  3.2.1987 a  Central  Labour Service was created by merging the following three cadres:-      1. Central Industrial Relations Machinery consisting of Assistant Labour  Commissioner  (central),  Regional  Labour Commissioner (Central),  Deputy  Chief  Labour  Commissioner (Central, Joint  Chief  Labour  Commissioner  (Central)  and Chief Labour Commissioner (Central).      2. Labour  officers (Central pool) consisting of Labour Officers and senior labour Officers.      3. Labour  Welfare Commissioners’  cadre consisting  of Assistant Welfare Commissioner and Welfare Commissioner.      According to  the appellant the three cadres which were so  merged   were  having   different  statutory  functions, different qualifications and different duties and powers. By merging the  three cadres  unequals  have  been  treated  as equals.  The   appellant  and    similarly  placed  officers belonging to the Central Industrial Relations machinery have thereby been  placed in  a  position  much  worse  than  the positions they occupied in their origin cadres. By reason of the merger, his chances of promotion have been substantially diminished. He  has, therefore,  challenged the  exercise of power under  Article 309  of the  constitution to  formulate Central labour  Service Rules,  1987. He has also challenged the merger  of the  three cadres  on the ground that this is done in violation of Articles 14 and 16 of the Constitution.      Under Article  309 of  the Constitution  Legislature is empowered to  regulate the  recruitment  and  conditions  of service of persons appointed to public services and posts in

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connection with  the affairs  of the Union or of any  State. The proviso to Article 309, however, empowers the President, in the  case of  services and  posts in  connection with the affairs  of   the  Union,   to  make  Rules  regulating  the recruitment and  conditions of  service of persons appointed to such services and posts until provision in that behalf is made by  or under an Act of the appropriate Legislature. The power to  regulate recruitment  and conditions of service is wide and  would include  the power to constitute a new cadre by merging certain existing cadres.      However,  when  different  cadres  are  merged  certain principles have  to be  borne in mind. These principles were enunciated in  the case  of State of Maharashtra and Anr. V. Chandrakant Anant  Kulkarni &  Ors. (1982  1 SCR 665 at page 678)  while  considering  the  question  of  integration  of government servants  allotted to  the services  of  the  new States when  the different States of India were reorganised. This Court cited with approval the principles which had been formulated  for   effecting  integration   of  services   of different States.  These principles  are: In  the matter  of equation  of   posts,  (1)   where  there   were   regularly constituted similar  cadres  in  the  different  integrating units the cadres will ordinarily be integrated on that basis but (2)  where  there  were  no  such  similar  cadres,  the following  factors  will  be  taken  into  consideration  in determining the equation of posts:-      (a) Nature and duties of a post;      (b) Powers exercised by the officers holding a post the           extent of  territorial or  other  charge  held  or           responsibilities discharged;      (c) The  minimum qualifications, if any, prescribed for           recruitment to the post and;      (d) the salary of the post. This court further observed that it is not open to the court to consider  whether the  equation  of  posts  made  by  the central Government  is right  or wrong.  This was  a  matter exclusively within  the province  of the Central Government. Perhaps the  only question  the Court  can enquire  into  is whether the  four principles  cited above  had been properly taken into  account. This  is the  narrow and  limited field within which  the supervisory  jurisdiction of the Court can operate.      This decision  has been  relied upon  in  a  subsequent decision of  this court  in Union  of India and ors. V. S.L. Dutta and Anr. (1991 [1] SCC 505).      In the  light of  the principles  laid down in State of Maharashtra V.  Chandrakant Anant  Kulkarni (supra), we have to examine  whether the cadres which have been merged by the notification of  3.2.1987 were  comparable carrying  similar qualifications and  comparable duties and salary. Respondent no.5 in his affidavit has stated that prior to the merger of the three  cadres the  cadre Review Committee which had been appointed for  cadre review  had recommended  the merging of these three  cadres/services operating under the Ministry of labour. The  Cadre Review  Committee was  headed by  cabinet Secretary and  had members  of various other ministries such as Secretary  Labour, Finance,  Department of Personnel, Law and Defence.  The  recommendations  of  the  committee  were approved by  the cabinet.  Thereafter Rules  were framed and these Rules  were sent  for approval first to the Department of Personnel  and thereafter  to the  Law Ministry  and  the Union  Public  Service  Commission.  After  considering  the observations of  all these  department/agencies  appropriate Rules were  framed  and  notified  by  the  Government.  The respondents have  stated that  a detailed  exercise in  this

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connection was  done to ensure that no injustice takes place to any of the merging cadres. In the affidavit it is further stated that  the question  of merging  of  different  cadres under the  Ministry of  Labour had been considered thrice in the past.  Every time the desirability of merging the cadres was invariably  recommended. But  the merger  could not done due to  disparity in  the pay structures of the three cadres then existing.  This disparity,  however,  was  subsequently removed. By  1987 the  salary structure  was similar  in the three cadres.  Qualification contents  were also  almost the same in  respect of  all the three merging cadres. The three cadres though  operating separately,  were operating  in the field of  Industrial  Relations  and  Labour  Welfare;  and, therefore, in  1987 it  became possible   to merge the three cadres as  per  the  recommendations  of  the  cadre  Review Committee and  the discussions held thereon. The respondents have also  stated that  in merging  the three  services  the Government’s intention  was to  provide for  avenues whereby the officers  of the three merging cadres could get enriched by the experience of different posts. The interchangeability brought out  by the  creation of  a new service enables, for example, the  Assistant  labour  Commissioners  to  get  the experience  of   work  in  an  industry.  Similarly,  Labour officers and senior officers can get exposure to some of the quasi-judicial  functions   connected  with   the  posts  of Assistant  and   Regional  Labour   Commissioners.  It  was, therefore, felt that the constitution of a unified cadre was in public  interest. Hence the merger took place. Since this is essentially  a matter  of policy,  the scope of review by the court is limited. We can, however, examine the grievance of the  appellant relating  to  unequals  being  treated  as equals and  the grievance  relating  to  losing  promotional avenues.      The Central  Industrial Relations Machinery has been in existence since  1945. It  was entrusted  with the  task  of prevention   and    settlement   of   industrial   disputes, enforcement of  labour laws  and promotion  of welfare among industrial labour.  In 1987,  at the time of the merger, the cadre had  five posts  in Grade  A starting  with  Assistant Labour commissioner  in the  pay scale  of Rs. 700-1300, the next promotional post of Regional Labour Commissioner in the pay scale  of Rs.  1100-1600, the   next promotional post of Deputy Chief  labour Commissioner,  then joint  Chief labour Commissioner and  finally  at  the  top,  the  chief  labour commissioner. At the material time there also existed in the Labour Ministry  another set  of officers  known  as  Labour officers (Central  pool) and  senior labour  officers  whose main duty  was  to  maintain  harmonious  relations  between management of  an undertaking  and its  workers to bring the grievances of  the workers  to the  notice of the management and to  encourage provision  of amenities  to workers by the management. There  was also  a third  set of officers at the material time  under the  welfare Wing  of the  Ministry  of labour headed  by the  Director General,  labour Welfare who was ex-official  Joint Secretary to the Government of India. He was  assisted by a Welfare Commissioner with a supporting staff consisting  of nine  Welfare  commissioners  and  five Assistant  Welfare   Commissioners.  The   salary  scale  of Assistant  Welfare  Commissioners  as  also  of  the  Labour Officers in  the Central  Pool was  the same  as the  salary scale of  Assistant Labour  commissioners, namely,  Rs. 700- 1300. While  the salary  scale  of  senior  labour  Officers (Central pool),  Welfare commissioners  and Regional  Labour Commissioners was  in the  same scale  of Rs. 1100-1600. The cadres which  have been  merged thus  carried the  same  pay

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scales, though  different duties  in the  area of Industrial Relations and Labour Welfare.      The  qualifications  in  respect  of  Assistant  labour Commissioners, Labour  officers  in  the  Central  Pool  and Assistant Welfare  commissioners were also comparable though not identical. An Assistant labour commissioner was required to have  a  Bachelor’s  degree  with  economics  and  social science, a  degree in  law or a Master’s degree in economics or any  other social  science, diploma  in Labour Welfare or Labour laws  and five  years’  experience  in  dealing  with labour problems.  The prescribed qualifications for a Labour Officer were  a Bachelor’s  degree in  Arts with  economics, commerce or  sociology, a post-graduate degree or diploma in social work,  labour  welfare  or  industrial  relations  or personnel management  or other  qualification. Degree in law or training  in social  work or  other allied  courses  were desirable.      For Assistant  Welfare commissioners the qualifications prescribed was  a degree  of a  recognised  university  with economics, commerce,  social  work  or  sociology,  a  post- graduate  degree  or  diploma  in  social  work,  industrial relations, personnel  management or  allied subject and five year’s experience of labour welfare, industrial relations or personnel management.  A  degree  in  law  was  a  desirable qualification. Thus  the qualifications  for the three posts are comparable.      Coming to  duties; the  duties of  an Assistant  labour commissioner  (central   pool)  have   been   described   as prevention and   settlement  of industrial  disputes in  the central  undertakings,   holding  conciliation  meetings  by calling the  trade union  and the  employer so  as to  avoid strikes, lock-out,  unfair practices  etc., verification  of membership of  central trade unions and so on. The Assistant labour commissioner  also performed  other statutory  duties under the  Industrial  Disputes  Act  such  as  ascertaining membership  of  trade  union,  or  granting  recognition  of protected workmen. Other statutory duties included acting as a controlling  authority under  the Payment of Gratuity Act, acting  as  a  registering  officer  under  Contract  labour Regulation and  Abolition Act,  duties under  the Payment of Bonus Act,  Maternity Benefits   Act  and some  other labour legislation.      Labour officers  were posted in different undertakings. Their duty  was to maintain harmonious relations between the management of  the undertaking  and the  workers.  For  this purpose they  were required to advice the management and the trade unions.  It was also their duty to bring to the notice of the  management the  grievances of the workers, to advice and concerned department of the undertaking or the statutory obligations under  the Factories Act, 1948  to encourage the provision of  amenities such  as Canteen, creches, providing drinking water  and so  on. The  main role was to advise the management  in  various  labour  related  issues.  A  Labour officer was  prohibited from  appearing in  any disciplinary proceedings  against   the   worker   or   in   conciliation proceeding.      The Assistant  Welfare  commissioner  was  required  to assist the  employer in  formulating proposals for grant-in- aid under  various welfare schemes such as housing and water supply, health,  education and  recreation of  workers. They were  required   to  supervise  the  utilisation  of  grants sanctioned by  the  Ministry  of  Labour.  They  could  also formulate  proposals  for  opening  dispensaries  hospitals, recreational  activities   in  the   mining      areas   for disbursement of scholarships to the school-going children of

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workers in mines and so on.      The cadre Review Committee after examining the kinds of duties discharged  by these officers decided that since they all worked  in the  area of  labour  welfare,  it  would  be desirable that they could widen their experience. This would be possible if the cadres were integrated and the posts were made interchangeable so that the members  of the cadre could get a  more varied  experience in  different areas of labour welfare, thus making for a better equipped cadre. Therefore, although the  exact nature  of work done by the three cadres was different,  it would  be difficult to say that one cadre was superior or inferior to the other cadre or service.      A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried the same pay scale at the  relevant time, merging of the three cadres cannot be said to  have caused  any prejudice to the members of any of the cadres.  The total  number of  posts were also increased proportionately when  the merger  took  place  so  that  the percentage of  posts available  on promotion  was not in any manner adversely affected by the merger of the cadres.      The appellant,  however, contends  that as  a result of the merger  his promotional chances have been very adversely affected because his position in the seniority list has gone down. Rule 9 of the Central labour Service Rules, 1987 under which the  merger  is  effected,  lays  down  the  Rules  of seniority. It  provides   that the inter se seniority of the officers  appointed  to  the  various  grades  mentioned  in schedule I at the initial constitution stage  of the service shall be  determined according  to  the  length  of  regular continuous service  in the  grade subject  to maintenance in the respective  grade of  inter  se  seniority  of  officers recruited in  their respective  original cadres. The proviso to this  Rule  prescribes  that  although  Assistant  labour Commissioner (Central),  Labour officer an Assistant Welfare Commissioner  shall   be  equated,   all  Assistant   Labour Commissioners (Central) holding such posts on or before 31st of December,  1972  shall  be  en  block  senior  to  labour Officers and  (2) senior labour officers and Regional Labour Commissioners shall  be equated.  But  all  Regional  labour Commissioners holding  such posts  on or  before the  2nd of March 1980  shall be  en block  senior to  the senior labour officers.      Explaining the  proviso the  respondents have said that before 31st of December, 1972 Assistant labour commissioners were in  a higher pay scale than labour officers. The parity between their  pay scales came about only from January 1973. That is  why to  preserve their inter se position, Assistant labour Commissioners  appointed prior  to 31st  of December, 1972 have  been placed  above  Labour  officers.  Similarly, Regional Labour  commissioners drew a higher pay scales than senior labour  officers prior  to 1980.  The parity has come about  in  1980  and  hence  Regional  labour  Commissioners holding such posts on or before 2nd of March, 1980 have been placed above senior labour officers.      The seniority  Rules have  thus been  carefully  framed taking  all   relevant  factors   into  consideration.   The respondents have  also pointed out that as a matter of fact, by reason  of the  merger, the  appellant has  not, in fact, suffered any prejudice and he has also received promotions.      However, it  is possible  that  by  reason  of  such  a merger, the chance of promotion of some of the employees may be  adversely  affected,  or  some  others  may  benefit  in consequence. But  this cannot  be a ground for setting aside the merger  which is  essentially a  policy  decision.  This court in  Union of India v. S.L. Dutta (supra) examined this

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contention.   In S.L.  Dutta’s case  (supra) a change in the promotional policy  was challenged  on the  ground that as a result, service  conditions of the respondent were adversely affected since his chance of promotion were reduced. Relying upon the decision in the State of Maharashtra v. Chandrakant Anant Kulkarni (supra) this court held that a mere chance of promotion was  not a  condition of service and the fact that there was  a reduction  in the chance of promotion would not amount to a change in the conditions of service.      In the  premises, we  do not  find that  there  is  any adequate ground for setting aside the Central Labour Service Rules, 1987.  The appeal is, therefore, dismissed. Under the circumstance there will, however, be on order as to costs.