UNION OF INDIA & ORS. ETC. ETC. versus S. MAADASAMY AND ANR. ETC. ETC. on 1 May 2019

234

SUPREME COURT REPORTS

[2019] 8 S.C.R.

UNION OF INDIA & ORS. ETC. ETC.

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v.

S. MAADASAMY AND ANR. ETC. ETC.

(Civil Appeal Nos.5969-5970 of 2009)

BMAY 01, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Service Law:Recruitment Rules – Post of Principal,Grade ‘A’ (Senior Scale) and Joint Chief Inspector of Factories –Amendment to the Rules by a Notification, equating the post ofCPrincipal, Grade ‘A’ (Senior Scale) with the post of JCIF – Challengeto – Amended Recruitment Rules quashed and set aside by thetribunal as also High Court – On appeal held: Recruitment Ruleswere amended and the two posts came to be equated after theconcurrence of the UPSC and after the draft rules were approvedDby the UPSC – When a conscious decision was taken by the UPSCand the Government after considering the pros and cons of thematter and considering the relevant factors, being a policy decision,the tribunal was not justified in quashing and setting aside thestatutory rules – Thus, the High Court erred in upholding the orderof the tribunal – Even otherwise, the duties to be performed byEJCIF and Principal, Grade ‘A’ (Senior Scale) can be said to beidentical and/or similar in nature.

Disposing of the appeals, the Court

HELD: 1.1 It appears that the High Court dismissed theFwrit petition, confirming the judgment and order passed by thetribunal quashing and setting aside the amended rules equatingthe post of Principal, Grade ‘A’ (Senior Scale) with the post ofJCIF mainly on the ground that the nature of duties of both theposts, responsibilities and powers exercised by the officersholding the posts are not similar and/or identical. Relying uponGthe said two decisions of this Court-P.K. Roy and Roop Lal case,the High Court dismissed the writ petitions preferred by theappellants-Union of India and confirmed the judgment and orderpassed by the tribunal quashing and setting the amended rulesvide notification-G.O. No. 6 of 2015 equating the post of Principal, H

Grade ‘A’ (Senior Scale) with that of the post of JCIF. However,neither the tribunal nor the High Court has considered therelevant factors which were considered while amending the rulesand equating the two posts. The High Court also did not considerthe fact that the UPSC gave its concurrence to the amended rulesand only thereafter the rules were amended and the posts wereequated. [Para 6.3] [244-C-E]

1.2 From the affidavit-in-reply filed on behalf of the UPSCbefore the tribunal in O.A. No. 814 of 2005, it appears that therules were amended after the concurrence of the UPSC and afterthe draft rules were approved by the UPSC. From the affidavit-in-reply filed by the UPSC, it appears that the UPSC gave itsconcurrence after due deliberation with the Government fromtime to time. When a conscious decision was taken by the UPSCand the Government while amending rules and equating the twoposts after considering the pros and cons of the matter andconsidering the relevant factors being a policy decision, thetribunal was not justified in quashing and setting aside thestatutory rules. Therefore, the High Court committed a graveerror in dismissing the writ petition and confirming the judgmentand order passed by the Tribunal quashing and setting aside theamended rules by notification-G.O. No. 6 of 2015 equating thepost of Principal, Grade ‘A’ (Senior Scale) with that of the post ofJCIF. Even otherwise, on considering the nature and duties ofJCIF and Principal, Grade ‘A’ (Senior Scale), the duties to beperformed by JCIF and Principal, Grade ‘A’ (Senior Scale) canbe said to be identical and/or similar in nature.[Para 6.4-6.6] [244-E-F; 248-E-G; 249-B]

1.3 The impugned judgment and order passed by the HighCourt in Writ Petition arising out of the judgment and orderpassed by the tribunal quashing and setting aside the recruitmentrules issued vide notification-G.O. No. 6 of 2015 equating thepost of Principal, Grade ‘A’ (Senior Scale) with that of JCIF, cannotbe concurred with and is quashed and set aside.[Para 7, 7.1] [249-D-E]

1.4 The impugned judgment and order passed by the HighCourt in Writ Petition arising out of the judgment and order A

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Apassed by the tribunal by which the tribunal set aside the orderof transfer is concerned, the same stands disposed of. However,the liberty is reserved in favour of respondent No. 1-originalapplicant to challenge the order treating the period between15.03.2005 till he attained the age of superannuation as dies-non,before an appropriate court/forum and as and when suchBproceedings are initiated, the same may be considered inaccordance with law and on merits. [Para 7.2] [249-F-G]

Union of India v. P. K. Roy[1968] 2 SCR 186;Sub-Inspector Roop Lal v. Lt. Governor(2000) 1 SCC644 : [1999] 5 Suppl. SCR 310 – distinguished.

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P.U. Joshi v. Accountant General, Ahmedabad(2003) 2 SCC 632 : [2002] 5 Suppl. SCR 573– referred to.

ECIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5969-5970 of 2009

From the Judgment and Order dated 29.10.2007 of the HighCourt of Judicature at Madras in Writ Petition Nos. 44921 and 44922 of2006F

A. Mariarputham, Sr. Adv., V. G. Pragasam, PrabuRamasubramanian, S. Manuraj, Advs. for the Appellants.

Pramod Swarup, Sr. Adv., Ms. E. R. Sumathy, Ms. PareenaSwarup, Ms. Ameet Singh, Ms. Binu Tamta, Advs. for the Respondents.

G The Judgment of the Court was delivered by

M. R. SHAH, J. 1. As both these appeals arise out of theimpugned common judgment and order passed by the High Court andare between the same parties, the same are being disposed of by thiscommon judgment.

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2. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 29.10.2007 passed by the High Court of Madrasin Writ Petition Nos. 44921 and 44922 of 2006, by which the High Courthas dismissed the said writ petitions preferred by the appellants-Unionof India and others and confirmed the judgment and order passed by thelearned Central Administrative Tribunal dated 04.07.2006 in O.A. No.218 of 2005 and O.A. No. 814 of 2005, the Union of India and others-original writ petitioners before the High Court have preferred the presentappeals.

3. The facts leading to the present appeals in nutshell are as under:

3. The facts leading to the present appeals in nutshell are as under:

That respondent no. 1 herein-original applicant initially joined theservices in the Government of Puducherry as a Craft Instructor in theLabour Department on 03.11.1975 and was appointed as the GroupInstructor on regular basis. That, thereafter he was promoted as Inspectorof Factories on 27.09.1982 and as Principal, Group ‘A’ (Junior Scale) onregular basis w.e.f. 25.08.1989. That, thereafter on 26.07.2001, he waspromoted as the Joint Chief Inspector of Factories (hereinafter referredto as the “JCIF”) on regular basis. The promotion of respondent No. 1-original applicant was challenged by one Sri P.S. Krishnamurthy, whowas promoted as Principal, Group ‘A’ (Junior Scale) subsequent to thepromotion of respondent No. 1-original applicant. On the representationmade by the said Sri P.S. Krishnamurthy, the Government initiated stepsto convene a review DPC, but the same was rejected by the UPSC.Thereafter, respondent no. 1-original applicant joined duty in the saidpost on 26.07.2001. The said promotion was challenged by Sri P.S.Krishnamurthy by way of O.A. No. 795 of 2001, but the same wasdismissed by the Central Administrative Tribunal (for short ‘Tribunal’)on 29.07.2001. According to the appellants, the Government ofPuducherry also sent a proposal to UPSC for amendment of therecruitment rules equating the post of Principal, ITI held by Sri P.S.Krishnamurthy with that of JCIF. It appears that pursuant to the draftrecruitment rules equating the posts, respondent No. 1-original applicantwas transferred from JCIF and posted as Principal, Group ‘A’ (SeniorScale) on 30.09.2003. It appears that, in the meantime, in the year 1998the Government of Puducherry decided to create one post of Principal(Senior Scale) (Rs.3000-4500/- later revised to Rs.10,000-15200/-) inthe Government ITI at Karaikal. According to the Department, thesame was pursuant to the order of the Tribunal, based on the number of A

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Astudents at ITI, Karaikal being more than 400. The same was done inanticipation of the approval of the Government of India, by keeping onepost of Principal (Junior Scale) in abeyance. That the Government ofIndia, by order dated 19.10.2000 sanctioned the proposal for creation ofthe post of Principal, Group ‘A’ (Senior Scale) subject to the conditionthat one post of Principal (Junior Scale) which was kept in abeyance,Bshould be abolished. That, thereafter respondent No. 1 working asPrincipal (Junior Scale) in ITI, Puducherry was promoted to the post ofJCIF vide order dated 26.07.2001. That, thereafter on 17.09.2001,pursuant to the approval received from the Government of India for thecreation of one post of Principal (Senior Scale), one post of PrincipalC(Junior Scale) was abolished. It appears that pursuant to the draftrecruitment rules equating the posts of Principal, ITI and the JCIF,respondent No.1-original applicant was transferred from JCIF and postedas Principal, Group ‘A’ (Senior Scale) on 30.09.2003. That the saidorder was challenged by respondent No. 1 herein-original applicant beforethe learned Tribunal by way of O.A. No. 869 of 2003. That the saidDO.A. came to be allowed by the Tribunal vide its order dated 06.01.2004.The writ petition challenging the judgment and order passed by the learnedTribunal came to be dismissed by the High Court on 16.02.2005. At thisstage, it is required to be noted that while quashing and setting aside theorder dated 30.09.2003 transferring respondent No. 1 from JCIF toEPrincipal, Group ‘A” (Senior Scale), the learned Tribunal held that relianceplaced on draft recruitment rules to support the transfer, cannot besustained, as the mere approval of the Lt. Governor is not enough andthe consultation with and approval of the UPSC is required and thereafter,it has to be notified. The Tribunal also held the transfer as mala fideand passed with ulterior motive. The Tribunal also observed and heldFthat after the rules are approved by UPSC and notified, the Governmentwould be at liberty to make the transfer of the original applicant.

3.1 It appears that, thereafter the notification being G.O. No. 6dated 08.03.2005 to amend the recruitment rules relating to the post ofJCIF/Chief Principal, Group ‘A’ (Senior Scale) was published onG15.03.2005. Simultaneously, on the same date, respondent No. 1 herein-original applicant came to be transferred and posted as Principal, Group‘A’ (Senior Scale) to the Government ITI, Karaikal from the post ofJCIF, Puducherry. The said order of transfer came to be challenged byrespondent No. 1-original applicant before the learned Tribunal by way H

of O.A. No. 218 of 2005. That, by way of O.A. No. 814 of 2005,respondent No. 1-original applicant challenged the revised recruitmentrules introduced by G.O. No. 6 dated 08.03.2005, equating the two posts,namely the post of JCIF and the post of Principal Group ‘A” (SeniorScale) and also to set aside the said amended recruitment rules.

3.2 That the learned Tribunal quashed and set aside the order oftransfer dated 15.03.2005 stating that the same was mala fide and passedwith an ulterior motive. The learned Tribunal also allowed O.A. No.814 of 2005 and held that the amended rules are arbitrary and violativeof Articles 14 and 16 of the Constitution of India. According to the learnedTribunal, the purpose for bringing the amended rules was not germane,but was directed only to achieve a different purpose.

3.3 Feeling aggrieved and dissatisfied with the order passed bythe learned Tribunal in O.A. No. 218 of 2005 quashing and setting asidethe order of transfer dated 15.03.2005 and the judgment and order passedin O.A. No. 814 of 2005 quashing and setting aside the amendedrecruitment rules equating the post of Principal Group ‘A” (Senior Scale)with that of the post of JCIF, the appellants herein-Union of India andothers preferred writ petitions before the High Court. That, by theimpugned common judgment and order, the High Court has dismissedboth the writ petitions and confirmed the judgment and order passed bythe learned Tribunal quashing and setting aside the order of transferdated 15.03.2005 and setting aside the amended rules equating the postof Principal Group ‘A” (Senior Scale) with that of the post of JCIF.That, by the impugned judgment and order, the High Court has dismissedboth the writ petitions. Hence, the present appeals challenging theimpugned common judgment and order passed by the High Court in WritPetition Nos. 44921 and 44922 of 2006 confirming the judgment andorder passed by the learned Tribunal in O.A. No. 218 of 2015 and O.A.No. 814 of 2005 dated 04.07.2006.

3.4 Now, so far as the challenge to the impugned common judgmentand order passed by the High Court dismissing the writ petition andconfirming the judgment and order passed by the learned Tribunal inO.A. No. 218 of 2005, by which the learned Tribunal set aside the orderof transfer dated 15.03.2005 is concerned, it is the admitted position thatin view of the subsequent development and respondent No. 1 herein-original applicant has retired on attaining the age of superannuation, assuch, the challenge to the order passed by the High Court confirming the A

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Aorder passed by the learned Tribunal quashing and setting aside the orderof transfer dated 15.03.2005 has become infructuous/academic. Evenotherwise, there are concurrent findings given by both,the learned Tribunalas well as the High Court holding that the order of transfer was malafide and with the oblique motive. Therefore, the appeal challenging theimpugned judgment and order passed by the High Court dismissing theBwrit petition and confirming the judgment and order passed by the learnedTribunal in O.A. No. 218 of 2005 stands disposed of as infructuous/academic.

3.5 However, the question still remains how the period from theorder of transfer dated 15.03.2005 till respondent No. 1-original applicantCattained the age of superannuation is to be treated/considered. It appearsthat at the time when respondent No. 1-original applicant attained theage of superannuation, he has been paid the retirement benefits and thepension/pensionary benefits vide order dated 18.08.2016 and the periodfrom 15.03.2005 till he attained the age of superannuation is treated as Ddies-non and he has been paid the pension/pensionary benefitsaccordingly. Therefore, it will be open for respondent No. 1-originalapplicant to challenge the order dated 18.08.2016 treating the periodbetween 15.03.2005 till he attained the age of superannuation as dies-non, before the appropriate Court/Forum and as and when such proceedings are initiated, the same may be considered in accordanceEwith law and on its own merits.

Procedure

4. In view of the above, now the challenge to the impugnedjudgment and order passed by the High Court confirming the order passedby the learned Tribunal in O.A. No. 814 of 2005 by which the amendedrecruitment rules vide notification - G.O. No. 6 dated 08.03.2005 equatingFthe post of Principal, Grade ‘A’ (Senior Scale) with that of JCIF survives.

4.1 Shri A. Mariarputham, learned Senior Advocate has appearedon behalf of the appellants. Learned counsel appearing on behalf of theappellants has vehemently submitted that, as such, the challenge to theamended rules by respondent No. 1-original applicant before the learnedGTribunal was limited to equating the two posts and not the entirety of therules. It is further submitted by the learned counsel appearing on behalfof the appellants that, even otherwise, in the facts and circumstances ofthe case,both, the learned Tribunal as well as the High Court havecommitted grave error in quashing and setting aside the amended rulesHequating the post of Principal, Group ‘A’ (Senior Scale) with that of the post of JCIF. It is submitted that the educational and other qualificationsprescribed for the two posts in question, namely JCIF and Principal,Grade ‘A’ (Senior Scale) are identical;that the feeder cadre/posts forboth the posts are also identical and having common rules for the twoposts. It is submitted that, therefore, in that view of the matter, theequations of two posts cannot be said to be bad-in-law. It is furthersubmitted by the learned counsel appearing on behalf of the appellantsthat even in the lower cadres, the pattern of having the same rules for agroup of posts, where the feeder cadres are the same, was in existence.In support of his above submission, he has relied upon the 1982 Rules,governing the post of Inspector of Factories, Principal and Technicalofficers. It is submitted that a person posted as Inspector of Factories istransferable as Principal and vise-versa etc.

4.2 It is further submitted by the learned counsel appearing onbehalf of the appellants that both, the learned Tribunal as well as theHigh Court have materially erred in quashing and setting aside theamended rules equating the aforesaid two posts, on the ground that theduties and responsibilities with respect to the two posts are not similar/identical. It is submitted that there is no requirement in law that all theposts clubbed together should be identical in respect of duties andresponsibilities and functions. It is submitted that by the very nature ofthings, it will not be identical. It is submitted that what is to be seen iswhether the person is capable/competent to discharge the functions ofboth the posts. It is submitted that having regard to the identical,educational and other qualifications prescribed and coming from thefeeder cadres common to both, they are competent to man both theposts and capable of discharging the functions of both the posts. It issubmitted that, in the present case and in the case of respondent No. 1himself, in fact, his initial appointed was as a craft instructor; later hebecame the Inspector of Factories and thereafter he got promoted asPrincipal (Junior Scale) and thereafter got promoted as JCIF.

4.3 It is further submitted by the learned senior counsel appearingon behalf of the appellants that, even otherwise, the principles laid downby this Court for an administrative determination as to whether two postsare equivalent in nature for different purposes such as absorption, countingthe length of service for seniority, cannot be invoked to strike down alegislative exercise of rule making under the proviso to Article 309 of theConstitution of India which has been held to be statutory and legislativein character.

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A4.4 It is further submitted by the learned counsel appearing onbehalf of the appellants that, therefore, on facts the decision of this Courtin the case of Union of India v. P.K. Roy (1968) 2 SCR 186 as well asthe decision in the case of Sub-Inspector Roop Lal v. Lt. Governor(2000) 1 SCC 644, relied upon by the High Court shall not be applicableto the facts of the case on hand, more particularly, when the amendedBrules equating the posts were statutory and legislative in character.

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4.5 It is further submitted by the learned counsel appearing onbehalf of the appellants that, even otherwise, on facts, both, the learnedTribunal and the High Court have committed a grave error in quashingand setting aside the amended rules equating the post of Principal, Grade‘A’ (Senior Scale) with that of the post of JCIF, inasmuch as the amendedrules were approved by the UPSC and the rules were amended inconsultation with the UPSC and after elaborate discussions thereafterthe UPSC gave its concurrence/approval and thereafter the rules wereamended equating the two posts.

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4.6 Relying upon the decision of this Court in the case of P.U.Joshi v. Accountant General, Ahmedabad (2003) 2 SCC 632, it isvehemently submitted by the learned counsel appearing on behalf of theappellants that, as such, it is ultimately for the Government to take anappropriate decision on equation of posts. It is submitted that questionsErelating to the constitution, pattern, nomenclature of posts, cadres,categories and other conditions of service including avenues of promotionsand criteria to be fulfilled for such promotions pertain to the field ofPolicy and within the exclusive discretion and jurisdiction of the State. Itis submitted that, therefore, the learned Tribunal and the High Courthave committed a grave error in interfering with such a policy decision/Fdecision of the Government to equate two posts, which were after duedeliberations and in consultation with the UPSC.

4.7 Making the above submissions, it is prayed to allow the presentappeals and quash and set aside the impugned judgment and order passedby the High Court and the learned Tribunal insofar as quashing andGsetting aside the notification – G.O. No. 6 dated 18.03.2005 by whichthe post of Principal, Grade ‘A’ (Senior Scale) was equated with thepost of JCIF.

5. Shri Pramod Swarup, learned Senior Advocate appearing onbehalf of respondent No. 1 has supported the impugned judgment andorder passed by the High Court. It is submitted that the impugnedjudgment and order passed by the High Court upholding the judgmentand order passed by the learned Tribunal quashing and setting aside theamended rules equating the post of Principal, Grade ‘A’ (Senior Scale)with that of the post of JCIF is absolutely just and proper and consideringthe decisions of this Court in P. K. Roy (supra) and Roop Lal (supra). Itis submitted that as it was found that the nature of duties; responsibilitiesand powers exercised by holding the two posts are not similar and identicaland, therefore, the High Court was justified in confirming the judgmentand order passed by the learned Tribunal quashing and setting aside theamended rules. Therefore, it is prayed to dismiss the present appeals.

6. Heard learned counsel appearing on behalf of the respectiveparties at length.

6.1 As observed hereinabove, now in the present appeals, thechallenge to the impugned judgment and order passed by the High Courtdismissing the writ petition and confirming the judgment and order passedby the learned Tribunal in O.A. No. 814 of 2005 quashing and settingaside the amended rules equating the post of Principal, Grade ‘A’ (SeniorScale) with that of JCIF survives. Therefore, the only question which isnow required to be considered by this Court is whether, in the facts andcircumstances of the case, the High Court is justified in dismissing thewrit petition and confirming the order passed by the learned Tribunalquashing and setting aside the amended rules by notification – G.O. No.6 of 2015 dated 08.03.2015equating the post of Principal, Grade ‘A’(Senior Scale) with that of the post of JCIF?

6.2 From the impugned judgment and order passed by the HighCourt, it appears that the High Court has dismissed the writ petition,confirming the judgment and order passed by the learned Tribunal quashingand setting aside the amended rules equating the post of Principal, Grade‘A’ (Senior Scale) with the post of JCIF mainly on the ground that thenature of duties of both the posts, responsibilities and powers exercisedby the officers holding the posts are not similar and/or identical.Considering the decisions of this Court in the case of P.K. Roy (supra)

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Aand Roop Lal(supra), the High Court has observed and held that theequation of posts has to be determined by taking into account the followingfactors:

(i) nature and duties of post;

(ii) responsibilities and powers exercised by officer holding a post;Bextent of territorial or other charge held or responsibilities discharged;

(iii) minimum qualifications, if any, prescribed for recruitment tothe post; and

(iv) salary of the post.

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6.3 Relying upon the aforesaid two decisions of this Court, theHigh Court has dismissed the writ petitions preferred by the appellantsherein-Union of India and has confirmed the judgment and order passedby the learned Tribunal quashing and setting the amended rules videnotification – G.O. No. 6 of 2015 equating the post of Principal, GradeD‘A’ (Senior Scale) with that of the post of JCIF. However, neither thelearned Tribunal nor the High Court has considered the relevant factorswhich were considered while amending the rules and equating the twoposts. The High Court has also not considered the fact that the UPSCgave its concurrence to the amended rules and only thereafter the ruleswere amended and the posts were equated.E

6.4 From the affidavit-in-reply filed on behalf of the UPSC beforethe learned Tribunal in O.A. No. 814 of 2005, it appears that the ruleswere amended after the concurrence of the UPSC and after the draftrules were approved by the UPSC. From the affidavit-in-reply filed bythe UPSC, it appears that the UPSC gave its concurrence after dueFdeliberation with the Government from time to time. Relevantparagraphs of the affidavit-in-reply which are necessary for determinationof the issue involved are as under:

“5. That the proposal for framing of common Recruitment Rulesfor the post of Joint Chief Inspector of Factories and Principal,GGroup ‘A’ (Senior Scale) in the scale of pay of Rs. 10000-15200under the Labour Department of the Government of Pondicherryin lieu of the existing Recruitment Rules for the post of Joint ChiefInspector of Factories, was received on 18[th] March 2003(ANNEXURE R-I). The proposal was examined and theGovernment of Pondicherry was requested to certify whether H

the duties of both the posts (Joint Chief Inspector of Factoriesand Principal, Group ‘A’ (Senior Scale) match to merit framing ofcommon Recruitment Rules and whether the persons holding thepost of Principal will be able to discharge the duties of the post ofJoint Chief Inspector of Factories effectively and vice versa. Inthis connection Commission’s letter, dated 21.05.2003(ANNEXURE R-II) may be referred to. It is most respectfullysubmitted that in response to Commission’s letter referred to above,the Government of Pondicherry furnished clarifications vide theirletter, dated 01.08.2003 (ANNEXURE R-III). Subsequently, theGovernment of Pondicherry was also requested to furnish theduties and responsibilities attached to the post of Joint ChiefInspector of Factories, vide Commission’s letter, dated 23.10.2003(ANNEXURE R-IV). The duties and responsibilities werefurnished by the Government of Pondicherry vide their letter, dated29.10.2003 (ANNEXURE R-IV-A). It was found that the dutiesof both the posts did not match. Accordingly, the Government ofPondicherry was advised vide letter dated 27.11.2003(ANNEXURE R-IV-B) to explore the possibility of filling the postby deputation. In reply, the Government of Pondicherry informedvide their letter, dated 09.02.2004 (ANNEXURE R-V) that thesuggestion to explore the possibility of filling up the post of JointChief Inspector of Factories by deputation, will not help them inensuring the safety and health of industrial workers.

6. It is most respectfully submitted that the Government ofPondicherry, in their letter, dated 09.02.2004 referred to above,insisted upon having common Recruitment Rules for the posts ofJoint Chief Inspector of Factories and Principal, Group ‘A’ (SeniorScale), while expressing that their intention that these two postsare interchangeable, and both the incumbents holding feeder postsof Inspector of Factories and Principal, Group ‘A’ (Junior Scale)are capable of discharging their duties of the post of Joint ChiefInspector of Factories effectively. The Pondicherry Governmentalso stated that feeder post for the promotional post of Principal(Junior Scale), Inspector of Factories and Inspector of Boilersare also interchangeable and that the Joint Chief Inspector ofFactories and Principal, Group ‘A’ (Senior Scale) are the onlyhigher posts available for the lower cadre as promotional avenues.

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Therefore, the post of Joint Chief Inspector of Factories cannotbe set a part for deputationists, as suggested by UPSC.

7. It is also most respectfully submitted that the Government ofPondicherry, in their communication referred to above, clearlystated that the intention is for creating avenues of promotion tothe cadre of Inspector of Factories and Principal, Group ‘A’ (JuniorScale), Technical Officer and Training Officer and theGovernment has also brought all these four posts under oneumbrella. The Government of Pondicherry had stated that sincethese four posts were brought under one umbrella, there will beno difficulty in operating a common Recruitment Rules for theposts of Joint Chief Inspector of Factories and Principal, Group‘A’ (Senior Scale) by keeping these four posts as a feeder post.The Government of Pondicherry had also stated that having acommon Recruitment Rules will facilitate not only the rotation ofofficers at frequent intervals for better administration, but alsowill create promotional avenues to the officers holding the feederposts. The Government of Pondicherry further emphasised thatsuch an action will also meet guidelines of the Chief VigilanceCommission of India, New Delhi. Subsequently, the case wasalso discussed by Joint Secretary (Labour) with the concernedofficers of UPSC in the Commission on 24.05.2004 and therepresentative of the Pondicherry Government was requested tosubmit detailed comment with regard to the requirement of havinga common Recruitment Rules again. The record of the discussionheld on 24.05.2004 is annexed as (ANNEXURE R-VI). Having examined the proposal it was felt necessary to have a clear view,particularly the details to corroborate the assertion of thePondicherry Government that there is stagnation in the feedergrade. As such, the Government of Pondicherry was requestedto forward a statement indicating the name of the incumbentsholding the posts of Inspector of Boilers, Inspector of Factories,Technical Officer and Training Officer and Principal, I.T.I. andalso their date of regular appointments in the respective grade.Commission’s letter, dated 19.11.2004 (ANNEXURE R-VII) maybe referred to. Finally, having examined the entire proposalalongwith the details furnished by the Government of Pondicherry,the Recruitment Rules were concurred by the Commission upon insistence of the Government of Pondicherry to have the commonRecruitment Rules in view of the following:

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(i) That the feeder post of Principal (Junior Grade) andInspector of Factories are also interchangeable.

(ii) That the feeder grade posts of Inspector of Boilers,Inspector of Factories, Principal, Group ‘B’, I.T.I.,Technical Officer and Training Officer could be providedbetter promotional avenues as some of the incumbentsholding these posts are stagnating in their respective grade.

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(iii) That it is necessary to have a common Recruitment Rules,because the post of Joint Chief Inspector of Factories is asensitive post and there is a need to rotate the officers atfrequent intervals so as to meet the guidelines of theCentral Vigilance Commission. The Government ofPondicherry had certified that there is no impediment tohave a common Recruitment Rules for both the posts ofJoint Chief Inspector of Factories and Principal, Group ‘A’(Senior Scale).”

6.5 From the aforesaid, it appears that the UPSC gave itsconcurrence after having due deliberations and considering the relevantfactors and only thereafter the rules came to be amended and the twoposts in question came to be equated. In the case of P.U. Joshi (supra)in paragraph 10, this Court has observed and held as under:

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“10. We have carefully considered the submissions made on behalfof both parties. Questions relating to the constitution, pattern,nomenclature of posts, cadres, categories, their creation/abolition,Fprescription of qualifications and other conditions of serviceincluding avenues of promotions and criteria to be fulfilled forsuch promotions pertain to the field of policy is within the exclusivediscretion and jurisdiction of the State, subject, of course, to thelimitations or restrictions envisaged in the Constitution of Indiaand it is not for the statutory tribunals, at any rate, to direct theGGovernment to have a particular method of recruitment or eligibilitycriteria or avenues of promotion or impose itself by substituting itsviews for that of the State. Similarly, it is well open and within thecompetency of the State to change the rules relating to a service H

Aand alter or amend and vary by addition/substraction thequalifications, eligibility criteria and other conditions of serviceincluding avenues of promotion, from time to time, as theadministrative exigencies may need or necessitate. Likewise, theState by appropriate rules is entitled to amalgamate departmentsor bifurcate departments into more and constitute differentBcategories of posts or cadres by undertaking further classification,bifurcation or amalgamation as well as reconstitute and restructurethe pattern and cadres/categories of service, as may be requiredfrom time to time by abolishing the existing cadres/posts andcreating new cadres/posts. There is no right in any employee ofCthe State to claim that rules governing conditions of his serviceshould be forever the same as the one when he entered servicefor all purposes and except for ensuring or safeguarding rights orbenefits already earned, acquired or accrued at a particular pointof time, a government servant has no right to challenge the authorityof the State to amend, alter and bring into force new rules relatingDto even an existing service.”

6.6 Thus, when a conscious decision was taken by the UPSC andthe Government while amending rules and equating the two posts afterconsidering the pros and cons of the matter and considering the relevantfactors referred to and reproduced hereinabove, being a policy decision,Ethe Tribunal was not justified in quashing and setting aside the statutoryrules. Therefore, the High Court has committed a grave error indismissing the writ petition and confirming the judgment and order passedby the learned Tribunal quashing and setting aside the amended rules bynotification – G.O. No. 6 of 2015 equating the post of Principal, GradeF‘A’ (Senior Scale). Now, so far as the reliance placed upon the decisionsof this Court in the cases of P.K. Roy (supra) and Roop Lal(supra) isconcerned, on considering the decisions, we are of the opinion that, inthe facts and circumstances of the case, those decisions shall not beapplicable to the facts of the case on hand. The decision in the case ofP.K. Roy (supra) related to administrative determination of equivalenceGbetween different posts in the context of State re-organization andabsorption of individuals in equivalent posts. The decision in the case ofRoop Lal(supra) related to absorption of a Sub-Inspector belonging toBSF in the Delhi Police when he was serving on deputation, and period H

to be counted for seniority. Therefore, on facts, the said decision shallnot be applicable to the facts of the case on hand.Even otherwise, on considering the nature and duties of both the postsnamely JCIF and Principal, Grade ‘A’ (Senior Scale), we are of theopinion that the duties to be performed by JCIF and Principal, Grade ‘A’(Senior Scale) can be said to be identical and/or similar in nature.

7. In view of the above and for the reasons stated above, we areunable to agree with the view taken by the High Court dismissing thewrit petitions and confirming the judgment and order passed by the learnedTribunal quashing and setting aside the amended rules by notification –G.O. No. 6 of 2015 equating the post of Principal, Grade ‘A’ (SeniorScale) with the post of JCIF. The impugned judgment and order passedby the High Court as well as the judgment and order passed by thelearned Tribunal deserve to be quashed and set aside.

7.1 In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court in Writ PetitionNo. 44922 of 2006 arising out of the judgment and order dated 04.07.2006passed by the learned Tribunal in O.A. No. 814 of 2005 quashing andsetting aside the recruitment rules issued vide notification – G.O. No. 6of 2015 equating the post of Principal, Grade ‘A’ (Senior Scale) withthat of JCIF, is hereby quashed and set aside. The appeal arising out ofWrit Petition No. 44922 of 2006 is hereby allowed accordingly. Nocosts.

7.2 Now, so far as the impugned judgment and order passed bythe High Court in Writ Petition No. 44921 of 2006 arising out of thejudgment and order passed by the learned Tribunal dated 04.07.2006 inO.A. No. 218 of 2005 by which the Tribunal set aside the order oftransfer is concerned, the same stands disposed of, as observedhereinabove. However, the liberty is reserved in favour of respondentNo. 1–original applicant to challenge the order dated 18.08.2016 treatingthe period between 15.03.2005 till he attained the age of superannuationas dies-non, before an appropriate court/forum and as and when suchproceedings are initiated, the same may be considered in accordancewith law and on merits.

Nidhi Jain

Appeals disposed of.

A

B

C

DE

F

G

H