Allowed

Gayatri Kumari v. the State of Jharkhand through the Chief Secretary

Jharkhand HC6 Sept 2021LPA/41/2019

Case brief

AI extract

What is this about?

Sub Election Officers challenged merger conditions withholding benefits of the Jharkhand Administrative Service until their retirement. The court held the differential treatment arbitrary and irrational, quashed the challenged parts of the resolution, set aside the Single Judge’s order and allowed the appeal and writ petition.

What did the court decide?

Challenged parts of Clauses 3 and 4 of the Resolution dated 12.09.2008 quashed; Single Judge’s order set aside; writ petition allowed.

Gayatri Kumari Vs the State of Jharkhand through… — Service and Employment | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 41 of 2019 with

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I.A. No. 1581 of 2021

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1. Gayatri Kumari, aged about 53 years, wife of Madan Prasad, resident of Village – Murhu, P.O and P.S. Murhu, District Khunti.

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2 .Rajesh Ranjan Verma, aged about 55 years, son of Shri Shankar Narayan, resident of Ratu Road, P.O. – Hehal, P.S. Sukhdeo Nagar, District Ranchi.

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3 .Rajiv Kumar, aged about 57 years, son of Sri Moti Lal Jha, resident of Village Tungri, P.O & P.S.: Chaibasa, District West Singhbhum.

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4 .Ajitesh Kumar, aged about 58 years, son of Late Harinandan Pd., resident of Village Anumandal Karyalaya Simdega, P.O & P.S.: Simdega, District Simdega.

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5 .Mritunjai Kumar Pandey, aged about 57 years, son of Sri Ram Ekual Pandey, resident of Chenab Road, P.S. Sakchi, P.O Jamshedpur, District East Singhbhum.

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.... Petitioners/Appellants

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Versus

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1 .The State of Jharkhand through the Chief Secretary, having its office at Project Building, P.O and P.S. Dhurwa, District Ranchi.

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2. The Chief Electoral Officer-cum-Principal Secretary, Cabinet (Election) Department, Govt. of Jharkhand, having its office at Dhurwa, Sector-2, P.O and P.S. Dhurwa, District Ranchi.

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3. The Secretary, Finance, Govt. of Jharkhand, Ranchi having its office at Project Building, P.O and P.S. Dhurwa, District Ranchi.

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4. The Secretary, Personnel and Administrative Department, Govt. of Jharkhand, having its office at Project Building, P.O and P.S. Dhurwa, District Ranchi. 5 .The Principal Secretary to the Chief Minister, Govt. of Jharkhand, having its office at Project Building, P.O and P.S. Dhurwa, District Ranchi.

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6 .The Secretary, Ministry of Law, Govt. of Jharkhand, having its office at Project Building, P.O and P.S. Dhurwa, District Ranchi.

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.... Respondents/Respondents

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7 .Bipin Bihari, S/o Sri Tilakdhari Ram, R/o Gandhi Vihar, P.O & P.S. Bariatu, Distt – Ranchi.

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8 .Dilip Kumar Singh, S/o Sri Raj Kesh Prasad Singh, R/o Quarter No. 290, Sector – III/C, P.O & P.S.-Bokaro Steel City, Distt: Bokaro.

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9 .Ignatius Xaxa, S/o Sri Gabrial Khakha, R/o village Anumandal Karyalaya Gumla, P.O & P.S. Gumla, Distt: Gumla.

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10 .Geeta Choubey, W/o Sri Balbhadra Choubey, R/o Collectoriate Campus, P.O & P.S. Girididh and Distt. – Giridih. ..... Performa Respondents

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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----For the Appellants : Mr. Rajesh Kumar, Advocate For the State : Mr. Manish Mishra, G.P V.

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Oral Judgment Order No. 17: Dated 6^th September, 2021:

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With consent of the parties, hearing of the matter

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has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.

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2. The instant intra-court appeal under Clause 10 of Letters Patent is preferred against the order/judgment dated 29.11.2018 passed by learned Single Judge in W.P. (S) No. 4459 of 2010, whereby and whereunder the learned Single Judge refused to interfere with Clause 3 and 4 of the Resolution of the State Government issued vide circular dated 12.09.2008 by which the respondents-State while merging the cadre of the writ petitioners with the cadre of Jharkhand Administrative Service deprived the writ petitioners from extending promotional and other incidental benefits as also refused to issue any positive direction upon the respondentsState to make final merger of the petitioners with the Jharkhand Administrative Service completely in all respect of the merger including the posts held by the petitioners and to prepare a joint gradation and seniority list of the new merged Cadre.

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3. The brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated herein for proper adjudication of the lis , are as under:

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The writ petitioners were initially appointed as Sub-Election Officer in basic grade post through combined competitive examination conducted by Bihar

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Public Service Commission with many other officers of other cadres. Since then the writ petitioners are discharging their duties on their initial posts without any promotional benefits for the reason that there was no cadre rule for this post; whereas officers appointed in other cadres have been granted regular promotion. Aggrieved thereof, the petitioners moved to this Court by filing W.P. (S) No. 4608 of 2007, which was disposed of vide order dated 21.01.2008 with a direction on the respondents to prepare the Cadre Rule and thereafter promote the petitioners within a period of two months from the date of passing of the order. Even then when no Cadre Rule was prepared within stipulated period, the petitioner moved this Court by filing Contempt Petition (Civil) No. 267 of 2008. However, during pendency of the contempt petition, the respondents came out with Resolution dated 12.09.2008, by which the cadre of the petitioners were abolished and merged with Jharkhand Administrative Services but in the Resolution, in particular part of clauses 3 and 4, it has been stipulated that posts upon which the petitioners holds will not be immediately merged rather upon retirement of the petitioners the posts will be merged.

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Being aggrieved with the Resolution, in particular Clause 3 and 4 thereof, the petitioners again approached this Court by filing writ petition being W.P. (S) No. 4459 of 2010, praying therein for quashing the part of Clause 3 and 4 of the Resolution dated 12.09.2008, on the ground that after bifurcation of the State of Bihar 40 posts of the Election Officers were allocated to the State of Jharkhand and in view of Resolution dated 12.09.2008, the post of Sub-Election Officer (Gazetted) were merged with Jharkhand Administrative Service Cadre and after merger the cadre strength of Jharkhand Administrative Service has been increased from 695 to 735. The State of Jharkhand has issued a Gazette notification on 28.02.2009 wherein at serial no. 92, it has specifically been mentioned that the posts of SubElection Officer have been merged with Jharkhand Administrative Service Cadre and Election Service Cadre has not been shown in the notification. Further, the Cabinet (Election) Department, Govt. of Jharkhand vide letter dated 15.03.2011 and letter dated 08.07.2011 also informed that pursuant to Resolution dated 12.09.2008 the Election cadre has been merged with the Jharkhand Administrative Service cadre and thereafter in letter dated 10.12.2013 issued by Special Secretary, it has

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been mentioned that “Post of Sub-Election Officer is a post of basic grade of Jharkhand Administrative Service”, therefore, it is conscious decision of the State Government that cadre of Sub-Election Officer has been merged with Jharkhand Administrative Service and therefore, after its merger with the Jharkhand Administrative Service, the writ petitioners cannot be allowed to be treated differently in comparison to that of the original cadre of the Jharkhand Administrative Service.

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On the other hand, respondents-State stated that as per the provisions made in the aforesaid Resolution the holders of the posts of Sub Election Officer Cadre were not to be absorbed rather only the posts have to be merged with the Jharkhand Administrative Service Cadre, therefore, inclusion of seniority of writ petitioners in the seniority list of Jharkhand Administrative service Cadre Officers does not arise and since the writ petitioners are still working under the establishment of Election Cadre, all needful action pertaining to the service conditions of the writ petitioners are to be taken by the Cabinet (vigilance) Department itself.

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The learned Single Judge, after hearing learned counsel for the parties, refused to pass any positive

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direction in favour of the petitioners and dismissed the writ petition on the ground that merely due to lack of chance of promotion the decision of merger by way of policy decision cannot be interfered with in exercise of power of judicial review, which is the subject matter of present intra-court appeal.

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4. Learned counsel appearing for the petitionersappellants has submitted that the learned Single Judge has not appreciated the exact implication of principle of merger as once two cadres are being merged there will be no identity of the earlier cadre rather a new cadre will be said to come into existence and further implication would be that the employees/officers have to be treated at par in all respect but herein although the State of Jharkhand has come out with Resolution dated 12.09.2008 by merging the officers of Sub Election Officer with the Officers of Jharkhand Administrative Service Cadre but very surprisingly and contrary to the exact scope of merger has differently treated the writ petitioners by keeping them in the cadre of the Sub Election Officers and thereby deprived them the benefit of the Cadre of Jharkhand Administrative Service, which is nothing but an arbitrary and irrational approach of the State Government and this aspect has not been

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taken into consideration by the learned Single Judge and, therefore, the order passed by the learned Single Judge is not sustainable in the eyes of law.

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He, learned counsel, further submits that the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand on the one hand is defending its decision by filing an affidavit but very surprisingly while making communication to the office of Accountant General vide letter dated 21.07.2015, Annexure 8 to the memo of appeal, it has been informed to the office of Account General about merger of post of Sub Election Officer to that of the cadre of Jharkhand Administrative Service enhancing total strength of the cadre of Jharkhand Administrative Service from 695 to 735 and once the entire post which has been allocated to the State of Jharkhand on bifurcation of the State as on 15.11.2000 has been merged, all the incumbents working against the post of Election Officer will be held entitled to get the benefit at par with the officers working in the cadre of Jharkhand Administrative Service, but this aspect of the matter has also not been appreciated by the learned Single Judge, therefore, the order passed by the learned Single Judge is not sustainable in the

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eyes of law and as such the same may be quashed and set aside.

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5. Per contra, Mr. Manish Mishra, learned G.P. V appearing for the respondents-State of Jharkhand has argued on the basis of affidavit filed on behalf of the respondents-State that the decision of merger being a policy decision is least to be interfered with under the scope of judicial review sitting under Article 226 of the Constitution of India and as such herein also, since the writ petitioners are questioning the Clause 3 and 4 of the Resolution dated 12.09.2008, which is a policy decision based upon rationality and, the same may not be interfered with.

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Learned counsel for the State further submits that there is no illegality in the policy of merger since at Clause 3 and 4 conscious decision has been taken by the State Government for merger of the entire cadre of the Sub Election Officer after retirement of the working force in the cadre but simultaneously there may not be alteration in the service condition, as such they have been decided to be given the benefit at par with the coworkers working under the successor State of Bihar and therefore, there ought not to be any grievance of the writ petitioners and taking into consideration this aspect of

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the matter, the learned Single Judge is correct in dismissing the writ petition.

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6. We have heard learned counsel for the parties and perused the documents available on record as also the finding recorded by learned Single Judge.

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7. This Court before entering into the legality and propriety of the impugned order, deem it fit and proper to reflect certain admitted facts, which are necessary for proper adjudication of the lis :

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Admittedly, the writ petitioners were appointed through the examination duly conducted by the Bihar Public Service Commission before bifurcation of State of Bihar i.e. before 15.11.2000, in which they were given the cadre of Sub-Election Officer and accordingly they started to discharge their duties. The erstwhile State of Bihar was bifurcated w.e.f. 15.11.2000 and by virtue of the statutory provision, 40 posts of Sub Election Officer were allocated to the successor State of Jharkhand in view of the order passed by the Central Government under Section 72 of the Bihar Re-Organization Act, 2000. The successor State of Jharkhand after allocation of the cadre of the post of Sub Election officer, which comes to 40 posts, against which working strength was 26 posts only and, therefore, the State Government has

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taken a decision not to continue with the separate cadre of the post of Sub Election Officer and as such a decision was taken vide Resolution dated 12.09.2008 for merger of the cadre of Sub Election Officer with the post of Jharkhand Administrative Officer. However, before issuance of Resolution dated 12.09.2008, the writ petitioners had approached to this Court since their cases for promotion to the higher posts were not being considered and in pursuance to the order passed by the writ Court wherein direction was issued to create a separate cadre for the post of Sub Election Officer in terms of the aforesaid direction Resolution dated 12.09.2008 was notified.

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8. But, the writ petitioners being aggrieved with the part of clause 3 and 4 of the Resolution dated 12.09.2008 again approached this Court by filing W.P. (S) No. 4459 of 2010, which was dismissed vide order 29.11.2018, which is the subject matter of present intracourt appeal.

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For ready reference Clause 3 and 4 of the Resolution dated 12.09.2008 is reproduced herein below:

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“ mi;qZDr ds vkyksd esa jkT; ljdkj }kjk ;g fu.kZ; fy;k x;k gS fd jkT; xBu ds i'pkr vfoHkkftr fcgkj jkT; ds fuokZpu laoxZ esa izkIr 40 inksa dks jkT; iz'kklfud lsok ds lkFk foy; dj fn;k tk;A dkykUrj esa

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tSls&tSls voj fuokZpu@mi fuokZpu inkf/kdkjh lsokfuo`r gksrs tk;saxs oSls&oSls mudk in dkfeZd foHkkx ds jkT; iz'kklfud lsok ds laoxhZ; :i esa miyC/k gksrs tk;saxsA blds lkFk ;g Hkh fu.kZ; fy;k x;k gS fd bl foy; ds QyLo:i bu inkf/kdkfj;ksa ds fgr esa deh u gks] fcgkj iquxZBu vf/kfu;e 2000 ds izko/kkuksa ds vkyksd esa next below rule dh Hkkafr bu inkf/kdkfj;ks dks vfoHkkftr fcgkj jkT; esa ewy laoxhZ; duh; inkf/kdkfj;ksa dks feyus okys izksUufr vkfn dk ykHk feyrk jgsxkA

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4 . bl foy; ds QyLo:i fuokZpu inkf/kdkjh laoxZ ds dqy 40 in >kj[k.M iz'kklfud lsok e a lfEefyr dj fy;s tk;saxs] ftlls >kj[k.M iz'kklfud lsok laoxZ ds ewy dksfV ds inksa dh la[;k 695 ls c<+dj 735 gks tk;sxh rFkk orZeku esa 26 fjDr inksa dks bl izdkj lekfgr djus ds ckn bl ij >kj[k.M iz'kklfud lsok ds inkf/kdkfj;ksa dh fu;qfDr dh dkjZokbZ dh tk;sxhA foHkktu ds mijkUr izkIr ,oa orZeku esa dk;Zjr 14 voj fokZpu inkf/kdkfj;ksa dks >kj[k.M iz'kklfud lsok ds inkf/kdkfj;ksa dh fu;qfDr dh dkjZokbZ dh tk;sxhA foHkktu ds mijkUr izkIr ,oa orZeku esa dk;Zjr 14 voj fuokZpu inkf/kdkfj;ksa dks izksUufr ,oa vU; ykHk mUgha ds ewy laoxZ ,oa vfoHkkftr fcgkj jkT; ds inkf/kdkfj;ksa dks next below rule ds vuqlkj ns; gksxhA vFkkZr~ fcgkj jkT; esa inLFkkfir fdlh duh; inkf/kdkjh dks izksUufr gsrq osru@lqfo/kk feyus ij >kj[k.M jkT; esa inLFkkfir inkf/kdkfj;ksa dks lerqY; ykHk ns; gksxkA tSls&tSls lsokfuo`fÙk vkfn ds QyLo:i ;s in fjDr gksrs tk;saxs] Lor% >kj[k.M iz'kklfud lsok esa lEekfgr gksrs tk;saxsA”

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9. Thus, it is evident from the condition stipulated in Clause 3 that altogether for total allocated 40 posts of Sub Election Officer a decision was taken to merge the said post with the cadre of Jharkhand Administrative Service. However, at that moment i.e. as on 12.09.2008 no benefit of merger was granted to the officers working as Sub Election Officer rather the post was decided to be merged with the cadre of Jharkhand Administrative Service, after retirement of one or the other Sub Election

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Officer in future. Apart from that the other decision was taken that by virtue of aforesaid merger there may not be any change in the service condition and as such in view of the provision of the Bihar Re-organization Act, 2000 the officers working under the cadre of Sub Election Officer will be granted the benefit of promotion etc in terms of the ‘ Next Below Rule’ , as per the benefit which was decided to be extended to the same cadre of officers working in undivided State of Bihar.

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Further, as per Clause 4, it has been decided that prior to the aforesaid merger of total 40 posts since the same will be included in the cadre of Jharkhand Administrative Service, in consequence thereof the total working strength in the basic grade of the post of Jharkhand Administrative Service will enhance from 695 to 735. For the 26 vacant post as on the date of issuance of Resolution dated 12.09.2008, the same would be merged with the cadre of Jharkhand Administrative Service and as rest 14 working Sub Election Officer retires time to time the said post(s) will be merged with Jharkhand Administrative Service. It has further been stipulated that after bifurcation of the State, the total working 14 Sub Election Officers would be given the benefit in accordance with the ‘Next Below Rule’

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meaning thereby they will be extended the benefit at par with the Sub Election Officers working in the State of Bihar.

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10. We, after going through the Resolution dated 12.09.2008, has found there from that the decision for merger has been taken for the post of Sub Election Officer with the post of Jharkhand Administrative Service for the reason that the working/non-working strength of the cadre of the post of Sub Election officer has been found to be less, therefore, it has not been found feasible to carry out the cadres of Sub Election Officer, who are only 40 in number, in separate cadre and further in order to avoid difficulty in fixation of the basic pay, determination of the hierarchy of the post of the promotion etc. they were decided to be merged with Jharkhand Administrative Service Cadre.

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Under clause 3 and 4 of the Resolution the total 40 posts of the Sub Election Officer, which was allocated to the State of Jharkhand under the statutory provision of Bihar Re-organization Act, 2000, having been merged with the Jharkhand Administrative Service Cadre enhancing the cadre strength of the cadre of Jharkhand Administrative Service from 695 to 735, therefore, there is no dispute about the fact that as per the aforesaid

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decision the government has taken a conscious decision of merger of 40 posts of Sub Election Officer with Jharkhand Administrative Service Cadre. But out of 40 posts only 14 officers, who have been working as Sub Election Officer, has been decided to be given no benefit for the reason as has been given under clause 3 and 4 of the Resolution that the total working force will only be merged with the cadre of Jharkhand Administrative Service after their superannuation, aggrieved thereof, the writ petitioners have drawn this litigation.

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11 . We, after considering the aforesaid factual aspect and the decision of the State Government as contained in Resolution dated 12.09.2008, are required to answer as to whether once the government has taken a decision of merger of one cadre with another cadre can such discrimination be allowed to be made and if it has been made can it not be said to be arbitrary and irrational necessitating the writ Court to interfere exercising the power of judicial review?

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12 . There is no dispute about the fact that the merger of one cadre with another is a policy decision of the Government and it is well settled principle of law that policy decision made by the State Government is least to be interfered while sitting under Article 226 of the

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Constitution of India unless such decision is arbitrary, unreasonable or capricious, as has been held by Hon’ble Apex Court in the case of S. Shivaguru Vs. State of Tamil Nadu & Ors [(2013) 7 SCC 335], wherein their Lordship has been pleased to hold that matter pertaining to integration of different cadres being one of the policy decision cannot be challenged, unless said decision is arbitrary, unreasonable or capricious.

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13 . We have proceeded to examine the lis keeping the aforesaid position of law into consideration and proceeded to examine as to whether the decision as contained under clause 3 and 4 of the Resolution dated 12.09.2008 is arbitrary, unreasonable or capricious warranting interference of this Court under Article 226 of the Constitution of India by exercising the power of judicial review .

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14 . But before proceeding with the same, it would be relevant to point out the meaning of the merger/integration of the cadres. It has not been disputed that upon merger of the two cadres, it is no longer permissible to treat the officers of one cadre which has been merged with the other cadre to be identified by treating them in the cadre which was existing prior to merger as the moment the decision has

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been taken for merger of one cadre with another, both the posts will lost their original identity and formed one homogenous cadre and in such a pretext employee/officers working in a cadre which has been merged with other cadre becoming a member of the homogeneous cadre after such decision by merger/integration of the cadre, the benefit of service cannot be denied on or after the date of initial merger/integration.

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15 . We have considered the judgment referred by Hon’ble Apex Court in the case of S. Shivaguru (Supra) wherein the issue of merger of two cadres was the subject matter, in which, the post of Health Inspector-IB was merged with the post of Health Inspector –I A vide GoM No. 320 dated 27.06.1997. Thereafter, all being redesignated as Health Inspector Grade I vide GOMs No. 382 dated 12.10.2007 with the condition of absorptions as contained in Clause 6 of the aforesaid G.O.M.

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For ready reference, the relevant paragraph containing relevant clause, which was subject matter before the Hon’ble Apex Court is reproduced herein below:

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“ 20. The conditions of absorptions were contained in Clause

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6 of the aforesaid G.O. which is as under:

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“The Government has therefore decided to accept the proposals of the Director of Public Health and Preventive Medicine to redesignate the Health Inspectors Grade IB as Health Inspector Grade I for the purpose of administrative convenience and to allow the scale of pay of Rs 4500-1257000. The rule relating to possession of Sanitary Inspector Course (or) Multipurpose Health Worker (Male) Training Course is relaxed in favour of these Health Inspectors Grade IB to designate them as Health Inspector Grade I, without affecting the rights of the existing Health Inspector Grade I working in Public Health Department. The Government accordingly issued the following orders:

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(i) The post of Health Inspector Grade IB shall hereafter be designated as Health Inspector Grade I and the scale of pay of Rs 4500-125-7000 be allowed to them from the date of issue of the order.

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(ii) Fixation of pay in the revised scale of pay shall be allowed only from the date of issue of orders under Fundamental Rule 23 at the same stage if there is a stage or next stage if there is no such stage. They are eligible for monetary benefits only from the date of issue of the government order.

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(iii) The above redesignation is subject to the result of Writ Petition No. 23893 of 2006 pending in the High Court of Madras and Writ Petitions Nos. 6250 and 6251 of 2006 pending before the Madurai Bench of Madras High Court.

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(iv) These redesignated Health Inspector Grade I will be placed in the seniority list of Health Inspector Grade I below the last person of the Health Inspector Grade I already working in the Department. As the redesignation as Health Inspector Grade I is given only from the date of issue of the order in relaxation of rule relating to possession of Sanitary Inspectors course, these redesignated Health Inspector Grade I cannot claim seniority now or in future in the post of Health Inspector Grade I from the date of their absorption in the Public Health Department as per GOMs No. 320 Health dated 27-6-1997.

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(v) The redesignated Health Inspector Grade I cannot claim promotion to the post of Block Health Supervisor, and Technical Personal Assistant till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor, and Technical Personal Assistant. However, the existing promotion channel as Non-Medical Supervisor and Health Educator shall be allowed to them till their turn for promotion to the post of Block Health Supervisor, Technical Personal Assistant, comes as per their seniority.”

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Being aggrieved with Clauses 6 (iv) and (v) of the GOM No. 382 dated 12.10.2007, the writ petitioners of that case approached the High Court, which was quashed holding that re-designated Health Inspector Grade 1 ought to have been given the same scale of pay as Health Inspector Grade 1A from the date of merger. The Hon’ble Apex Court upheld the order/judgment passed by the High Court holding that both the posts have lost its original identity since 27.06.1997 and formed one homogeneous cadre and therefore the State was not justified in denying to the erstwhile Health Inspector Grade IB the same treatment as was given to Health Inspector Grade IA. Subsequently, when the State Government did not treated officer of both the cadres at par in that pretext it has been held by the Hon’ble Apex Court that on that date, the two posts have re-designated as Health Inspector Grade I by all incumbents for the purpose of enjoying the same

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responsibilities. It was not permissible for the State to treat the re-designated Health Inspector Grade IA differently from Health Inspector Grade IB on the basis of final source of recruitment.

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For ready reference, the passage of said judgment as referred in paragraphs 59, 60 and 61 are being reproduced herein below:

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“59. Having accepted the complete merger of the cadre of Health Inspector Grade IB with Health Inspector Grade IA and all being redesignated as Health Inspector Grade I, GOMs No. 382 of 2007 failed to achieve the intended result. It still discriminated against the erstwhile Health Inspector Grade IB, by robbing them of service from 1997 to 2007. They were given the pay scale of Rs 4500-125-7000 but from the date of the GOMs No. 382 of 2007 i.e. 12-10-2007. Further, they were placed en bloc at the bottom of the seniority list of Health Inspector Grade I. This denial of seniority was justified on the ground that “as the redesignation of Health Inspector Grade I is given only from the date of the issue of the order in relaxation of rule relating to possession of Sanitary Inspector Course, they cannot claim the benefit of service since integration on 27-6-1997”. The redesignated Health Inspector Grade I were also denied promotion on the post of Block Health Supervisor and Technical Personal Assistant till the last person in the category of Health Inspector Grade I is promoted as Block Health Supervisor. They were given the alternate route of promotion as Non-Medical Supervisor and Health Educator, till their turn comes for promotion, as per their seniority. 60. Upon merger of the two posts, it was no longer permissible to treat the redesignated Health Inspector Grade IA differently from Health Inspector Grade IB. Since 1997, all incumbents on the posts of Health Inspector Grade IA and Health Inspector Grade IB were performing the same

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duties. There was intermixing of the duties performed by the two categories of the Health Inspector Grade IA and IB. Both the posts had lost their original identity since 27-6-1997, and formed one homogenous cadre. Further, having relaxed the qualifications on the basis of their length of service and experience, they were on a par with the Health Inspector Grade IA. Thereafter, the State was not justified in denying to the erstwhile Health Inspector Grade IB, the same treatment as was given to Health Inspector Grade IA. Therefore, the respondents could not have been denied the benefit of service on the post of Health Inspector Grade I from the date of the initial integration. It would be appropriate to notice the ratio of law laid down in SubInspector Rooplal [Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644 : 2000 SCC (L&S) 213] , wherein it was inter alia held that the previous service of the transferred officials who are absorbed in an equivalent cadre in the transferred post is permitted to be counted for the purpose of determination of seniority. It would be appropriate to notice here that Leprosy Inspectors redesignated as Health Inspector Grade IB have not been granted the benefit of seniority in their cadre from the date of their initial appointment. They have been deprived of their service on the post of Leprosy Inspector up to 27-6-1997 when they were integrated and redesignated as Health Inspector Grade IB. However, upon merger w.e.f. 27-6-1997, there was no distinction in the services rendered by Health Inspector Grade IA and Health Inspector Grade IB. Therefore, in our opinion, the provision in GOMs No. 382 of 2007 not to grant the Health Inspectors Grade IB/erstwhile Leprosy Inspectors the benefit of the service from 1997 for determination of their seniority for promotion to the post of Block Health Supervisor was completely unjustified. 61. Thus, the High Court, in our opinion, was completely justified in quashing Clauses 6(iv) and (v) of GOMs No. 382 of 2007. The High Court has correctly held that the redesignated Health Inspector Grade I ought to have been given the same scale of pay as Health Inspector Grade IA

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from the date of the merger. In fact, on that date itself, the two posts should have been redesignated as Health Inspector Grade I, enjoying the same scale of pay, as all incumbents were performing the same duties and shouldering the same responsibilities. It was not permissible for the State to treat the redesignated Health Inspector Grade I differently from the Health Inspector Grade IA, on the basis of the initial source of recruitment.”

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Further at paragraphs 72.4, 72.5, the Hon’ble

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Apex Court has held as under:

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72.4. Since there was a complete integration of the posts of Leprosy Inspector and Multipurpose Health Supervisor by virtue of GOMs No. 320 dated 27-6-1997, both categories were entitled to the same treatment. Therefore, Leprosy Inspectors redesignated as Health Inspector Grade IB were entitled to the pay scale of Rs 1350-2000 w.e.f. 1-8-1997 and the pay scale of Rs 4500-7000 w.e.f. the same were given to the Health Inspector Grade IA, with all the consequential benefits.

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72.5. Upon integration vide GOMs No. 320 dated 27-61997, Multipurpose Health Supervisors and Leprosy Inspectors were to be redesignated as Health Inspector Grade I. The birthmark of the Leprosy Inspector got obliterated with the integration. There could be no further distinction in the cadre of Health Inspector Grade I. There could be no such division as Health Inspector Grade IA and Health Inspector Grade IB.

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The Hon’ble Apex Court has held that denial of the

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seniority to the re-designated Health Inspectors Grade IB on the post of Health Inspector Grade I w.e.f. 01.08.1997 to12.10.2007 is violative of Articles 14 and 16 of the Constitution of India as such hold that Clauses 6(iv) and 6(v) of the GOM No. 382 dated 12.10.2007,

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which was questioned by the writ petitioners, was rightly struck down by the High Court. The relevant paragraphs

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72.6 to 72.8 are reproduced herein below:

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72.6. Since Clauses 6(iv) and 6(v) of GOMs No. 382 dated 12-10-2007 are in violation of Articles 14 and 16 of the Constitution of India, they have been correctly struck down by the High Court.

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72.7. The denial of seniority to the redesignated Health Inspectors Grade IB i.e. erstwhile Leprosy Inspectors on the post of Health Inspector Grade I w.e.f. 1-8-1997 to 12-102007 violated Articles 14 and 16 of the Constitution of India. The Division Bench of the High Court has correctly concluded that the integrated Leprosy Inspectors, redesignated as Health Inspector Grade IB are to be redesignated as Health Inspector Grade I and to be given seniority as well as consequential reliefs such as seniority and further promotions.

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72.8. The provision contained in Clause 6(v) of GOMs No. 382 dated 12-10-2007 denying promotion of the redesignated Health Inspector Grade I to the post of Block Health Supervisor and Technical Personal Assistant till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor and Technical Personal Assistant, has been rightly held by the High Court to be violative of Articles 14 and 16 of the Constitution of India.

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16 . Here, in the given facts of the case the respondents-State has come out with Resolution dated 12.09.2008 in particular Clauses 3 and 4, from which the writ petitioners are aggrieved with, but on the other hand the respondents-State has come out with communication dated 21.07.2015 addressed to Accountant General which has been appended as

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Annexure 8 to the memo of appeal whereby and whereunder the office of the Accountant General has been apprised about the total strength of the Jharkhand Administrative Service, which has been enhanced from 735 to 844 as per clause 6 of the tabular chart contained therein and due to creation of basic cadre posts of 109 it becomes 844. The aforesaid communication clearly suggests that the total 40 posts of Sub Election Officer have been merged with the post of Jharkhand Administrative Service Cadre after its conscious decision being taken by the Administrative Post Committee of the State Government which was duly approved by the Cabinet. But it is surprising that on the one hand the State has come out with the decision of merger/integration of 40 posts of Sub Election Officer with the cadre of Jharkhand Administrative Service and due communication was made to the Accountant General about such decision but when this Court has repeatedly asked to file an affidavit they are giving totally contradictory picture as has been given before the office of Accountant General, Jharkhand, Ranchi.

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17 . In our view, making communication with Accountant General by the Office of Personnel, Administrative and Rajbhasa Department, Govt. of

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Jharkhand apprising about enhancement of the post of Jharkhand Administrative Service Cadre on account of merger of the post of Sub Election Officer i.e. for the purpose of financial benefits which is to be extended to in favour of one or the other Class II officers of the cadre of Jharkhand Administrative Committee and once such communication has been made, keeping such communication into consideration they cannot deny their decision as has been taken at Clause 3 and 4 of the Resolution dated 12.09.2008 but it has been done.

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18 . The question is that once the decision of merger of the two different cadres has been taken by the Staterespondents, can the State be allowed to treat the officers of the cadre of Sub Election Officer different to that of the officers of the Jharkhand Administrative Service since the moment the officers of the Sub Election Officer Cadre has been merged with the cadre of Jharkhand Administrative Cadre the identity of cadre of Sub Election officer will vanish and lost its existence and it will be known to be the cadre of Jharkhand Administrative Cadre and the moment they will be known to the cadre of Jharkhand Administrative Cadre, the officers of Sub Election Cadre will be entitled to get all consequential benefits at par with the

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employees/officers working under Jharkhand

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Administrative Service Cadre. But without taking into consideration this aspect of the matter and the effect of merger/integration, condition has been stipulated under Clause 3 and 4 of the Resolution dated 12.09.2008 depriving 14 officers working as Sub Election Officers to get the benefit of merger/integration and only after their retirement 14 remaining posts out of 40 posts is said to be merged with the cadre of Jharkhand Administrative Service.

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19 . However, the question is that why such decision was taken, which is detrimental to the interest of the 14 officers working in the cadre of Sub Election Officers even though the government has taken a conscious decision for merger of the posts of Sub Election Officers with the Jharkhand Administrative Service Cadre by virtue of Resolution dated 12.09.2008 that too keeping the fact into consideration that to merge 40 posts out of which 14 post are to be filled up treating it a separate cadre which is not feasible, then why the State Government has come out with the contrary view in the same Resolution waiting for their superannuation for merger of 14 posts with the Jharkhand Administrative Service Cadre and if that be so then what is the purpose

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of merger of posts of Sub Election Officer with the post of Jharkhand Administrative Service Cadre by virtue of Resolution dated 12.09.2008 of the Personnel Department of the State of Jharkhand and if the respondents-State had not intended to merge the cadres, no decision ought to have been taken rather the State of Jharkhand would have waited for the superannuation of all 14 officers and only after their superannuation the decision of integration/merger of the cadre of the post of Sub Election Officer would have been taken but once such decision has been taken the decision of the State Government to wait for the superannuation of the 14 working Sub Election Officer who were without the benefit of promotional avenues and other benefits which are being extended in favour of the basic cadre of officers of Jharkhand Administrative Service, will be nothing but treating such officer 14 in number differently to that of the officers working under Jharkhand Administrative Service after integration/merger of the cadre and if that would allow to be continued it will be nothing but an unreasonable classification which will hit Article 14 of the Constitution of India as Article 14 envisages reasonable classification not unreasonable classification, as has been held by Hon’ble Apex Court in State of

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Jammu & Kashmir vs. Shri Triloki Nath Khosa and

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Ors. , [(1974) 1 SCC 19] wherein the Court [Chandrachud, J. (as he then was)] at paragraph 20 succinctly held as under:

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“20............. The challenge, at best, reflects the respondent’s opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld.”

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It was also observed in Shri Triloki Nath Khosa

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and Ors. , (supra) that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and it was incumbent upon the respondents-writ petitioner to establish that classification was unreasonable and bears no rational nexus with its purported object. The Hon’ble Apex Court dealing with the right to equality, at paragraphs 29 and 30 held as under:

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“29..........But the concept of equality has an inherent limitation arising from the very nature of the constitutional

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guarantee. Equality is for equals. That is to say that those who are 10 similarly circumstanced are entitled to an equal treatment.

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30.Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class...............”

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Now, we would like to next refer to the decision

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rendered in Air India v. Nergesh Meerza and others [(1981) 4 SCC 335] , which propounds the right of equality under Article 14 after considering various decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees’ Service Regulations was challenged, which provides for retiring age of an Air-Hostess.

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For ready reference, relevant paragraph 39 is reproduced as under:

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“39. Thus, from a detailed analysis and close examination of the eases of this Court starting from 1952 till today, the following propositions emerge :- (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Art. 14 can-not be attracted. (2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and

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boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Art. 14 will be completely out of the way. (3) Article 14 certainly applies where equals are treated differently without any reasonable basis. (4) Where equals and unequals are treated differently, Article 14 would have no application. (5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:- (a) the nature, the mode and the manner of 11 recruitment of a particular category from the very start, (b) the classifications of the particular category. (c) the terms and conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, (e) the special attributes that the particular category possess which are not to be found in other classes, and the like.”

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Further, in D.S. Nakara & Ors. Vrs. Union of

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India, 1983 AIR 130 , their Lordships of the Hon’ble Apex Court has been pleased to hold that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation but the classification must satisfy the twin tests of classification being found on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and

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that differentia must have a rational nexus to the object sought to be achieved by the statute in question. The thrust of Article is that the citizen is entitled to equality before law and equal protection of the law.

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Likewise in Ramana Dayaram Shetty Vrs. International Airport Authority of India & Ors., [AIR 1979 SC 1628], the Hon’ble Apex Court has been pleased to observe that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.

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20 . Further, the State Government has taken decision against Clause 3 and 4 of the Resolution that working 14 posts of Sub Election Officers will be entitled to be given the benefit of promotional avenues as they were being given in the undivided State of Bihar. Now the question would be as to why the officers working in the State of Jharkhand after bifurcation of the State will be given the benefit of promotional avenues which they were given prior to 15.11.2000 that too when the cadre has been integrated/merged with the cadre of Jharkhand Administrative Service? Stipulating such conditions

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entitling the 14 officers of Sub Election Officers to get promotional avenues as they were given in the undivided State of Bihar cannot be said to be proper decision of the State Government after decision of the merger that too the rationale furnished that the working force i.e. 14 in number will be merged with the cadre of the Jharkhand Administrative Service in future after retirement of one or the other officers from the cadre of the Sub Election Officer, which according to our considered view is also a very irrational approach and arbitrary action of the State Government, based upon unreasonable classification, after decision of the State Government of the merger of the cadre.

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21 . This Court therefore applying the factual aspect as was the subject matter of the case before Hon’ble Apex Court in the case of S. Shivaguru (Supra) comparing it with the fact of the given case finds that the issue involved in that case is almost similar herein also as after integration/merger of two cadres, the holders of one who have been merged with other are being deprived by giving benefit at par treatment with the cadre of the officer in other cadre. In that pretext, it has been held by Hon’ble Apex Court that there cannot be any discrimination once the posts/cadres have been

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integrated/merged as the moment the post have been merged/integrated a separate homogenous cadre will be said to have been created and thereafter the officers in the homogenous cadre will be entitled to get the benefit without treating differently and as such applying the aforesaid principle laid down therein and considering the factual aspect herein, we are of the view that part of the condition stipulated under Clause 3 and 4 of the Resolution dated 12.09.2008 suffers from arbitrariness and irrationality and, therefore, this Court would not be hesitating in exercising the power of judicial review in interfering with Clause 3 and 4 of the Resolution dated 12.09.2008.

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22 . We have gone across the order passed by the learned Single Judge and found therefrom that the learned Single Judge has only considered the fact that merely because one section of the employees are deprived from the benefit of promotion the same cannot be said to be a cause of action to come forward to get a declaration of policy decision of the State Government to be arbitrary and irrational. But we are not in agreement with such finding for the reason that it is not the question of only promotion rather it is the question of principle of merger/integration of posts and its effect

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and once the government takes a decision for integration/merger of the posts/cadres all implication has to be given effect to but the learned Single Judge has failed to appreciate this aspect of the matter, therefore, we are of the considered view that the order passed by the learned Single Judge is not sustainable in the eye of law.

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Furthermore, since the issue of lis before the learned Single Judge was the implication of the principle of merger not the promotion as promotion will be consequence of merger/integration of a cadre but that aspect of the matter has not been considered and the learned Single Judge has also not considered that if policy decision as contained in Clause 3 and 4 of the Resolution dated 12.09.2008 is allowed to be continued it will lead to class amongst class, which is yet another example of unreasonableness as there cannot be class amongst class, we are of the view that order passed by the learned Single Judge is not sustainable in the eyes of law.

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23 . In view thereof, the part of clause 3 and 4 of the Resolution dated 12.09.2008 is hereby quashed and set aside.

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24. In the result, the instant intra-court appeal is allowed and the order passed by the learned Single Judge is set aside, consequently the writ petition stands allowed.

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25 . Consequent upon the disposal of the Letters Patent Appeal, I.A. No. 1581 of 2021 stands disposed of.

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(Sujit Narayan Prasad, J.)

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Alankar/ - A.F.R.

Gayatri Kumari v. the State of Jharkhand through the Chief Secretary

Case brief

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Gayatri Kumari v. the State of Jharkhand through the Chief Secretary

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