LPA No. 614 of 2010 and other connected cases 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision:15.12.2010 LPA No. 614 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Ghanshayam Dass Sharma ….. RESPONDENT LPA No. 643 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Mahavir Singh and others ….. RESPONDENTS LPA No. 644 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Satyavir Singh and others ….. RESPONDENTS LPA No. 645 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Bhalle Ram ….. RESPONDENT LPA No. 646 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Surinder Kumar ….. RESPONDENT LPA No. 614 of 2010 and other connected cases 2 LPA No. 647 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Ram Kishan and others ….. RESPONDENTS LPA No. 648 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Surinder Kumar ….. RESPONDENT LPA No. 649 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Om Parkash Punia and others ….. RESPONDENTS LPA No. 650 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Ajmer Singh and others ….. RESPONDENTS LPA No. 651 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Uttam Singh and others ….. RESPONDENTS LPA No. 652 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Om Vir Singh Tomar and others ….. RESPONDENTS LPA No. 614 of 2010 and other connected cases 3 LPA No. 917 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Chander Shekhar Singh ….. RESPONDENT LPA No. 918 of 2010 State of Haryana and others ….. APPELLANTS VERSUS Mange Ram ….. RESPONDENT CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Ms. Palika Monga, DAG, Haryana, for the appellants. Mr. Puneet Bali, Advocate, Mr. Namit Kumar, Advocate, Mr. Gurpreet Singh, Advocate, for the respondents. *** AUGUSTINE GEORGE MASIH, J. By this order, we propose to decide LPA Nos. 614, 643 to 652, 917 and 918 of 2010, preferred by the State of Haryana and LPA No. 1522 of 2010 preferred by the private respondents in the writ petition as all these LPAs arise out of decision dated 28.07.2009 passed by the learned Single Judge in CWP No. 7303 of 1999 titled as Ghanshayam Dass Sharma vs. State of Haryana and others, vide which along with this, other writ petitions preferred by the similarly placed employees were allowed, who LPA No. 614 of 2010 and other connected cases 4 had given their option for absorption in Soil Conservation Cadre with directions to the State of Haryana to reconsider and re-decide the entire issue by taking into consideration only the seniority and the resultant effect thereof on the chances of promotion while allocating officials to different cadres. Counsel for the appellants submits that the policy of the State Government bifurcating the cadres and the criteria formulated for giving effect thereto has been found by the learned Single Judge to be not suffering from any vice of being unfair or unjust, the Court could not have interfered with the same as the chances of promotion is not a condition of service. It is open to the State Government to constitute as many cadres as they choose according to administrative convenience and expediency. In support of this contention, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of S.P.Shivprasad Pipal vs. Union of India and others, (1998) 4 SCC 598. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Devi Prasad and others vs. Government of Andhra Pradesh and others, 1980 (2) SLR 558. On this basis, prayer has been made for the appeals to be accepted by setting aside the judgment impugned. On the other hand, counsel for the respondents/petitioners submits that the bifurcation of the cadre has affected the chances of promotion adversely. They were not given any chance or option for working in a particular side while they were in the common cadre as the posting was done by the authorities on their own. Merely because they were posted and had to work in a particular side, they cannot now be deprived of the benefit of their seniority and their right to absorption in a particular cadre, which has been created out of the common cadre as per their LPA No. 614 of 2010 and other connected cases 5 exercised option. The course, which has been adopted by the appellants/respondents has reduced the promotional chances of the employees in the same cadre. The absorption of the petitioners and the private respondents in different cadres while ignoring the seniority is leading to an unfair result especially when the qualifications prescribed for the posts are the same.. Thus, the order passed by the learned Single Judge is fully justified and is in accordance with law. He, on this basis, prays for dismissal of the appeals. We have heard the counsel for the parties and have gone through the records of the case. Briefly, the facts are that the petitioners, who approached this Court through writ petitions, were working as Agricultural Development Officers (hereinafter referred to as 'ADOs) along with private respondents in the writs and had a common cadre. Government of Haryana promulgated Haryana Subordinate Agriculture (Group C) Service Rules, 1993 (hereinafter referred to as '1993 Rules'). As per Rule 9 of these Rules, five cadres, namely, Administrative Cadre, Agricultural Engineering Cadre, Statistical Cadre, Geology/Hydrology Cadre and Soil Conservation/Soil Testing/Soil Survey Cadre were created. Despite Rules being in existence and separate posts provided for the ADOs in the Administrative Cadre and the Soil Conservation/Soil Testing/Soil Survey Cadre (hereinafter referred to as 'Soil Conservation Cadre'), the cadre continued as a joint one with a common seniority and was termed as Common Administrative Cadre. The qualifications for appointment to these posts are the same and the posting was interchangeable. A decision was taken by the Government of Haryana to bifurcate this joint cadre into two separate cadres as per 1993 Rules. LPA No. 614 of 2010 and other connected cases 6 Under Rule 9 of the 1993 Rules, options for posting them into two cadres namely Administrative Cadre and Soil Conservation Cadre were invited from all the ADOs working under the Common Administrative Cadre vide memo dated 05.06.1997 (Annexure P-1). The options were to be exercised by the officers on or before 25.06.1997. It is not in dispute that the posts of ADOs under the Administrative Cadre were 1159 and that under the Soil Conservation Cadre were 141. Out of the 141 sanctioned posts falling in the cadre of the Soil Conservation, as per ratio of the total filled up posts, only 128 posts were actually to be filled up posts, out of this, 27 posts in this cadre were to be filled up from reserved category candidates and remaining 101 posts were assigned to be filled from the general category candidates. In response to the options sought for by the department vide memo dated 05.06.1997, 517 ADOs belonging to the general category opted for absorption in the Soil Conservation Cadre. As the posts available for absorption were much less than the options received, a Committee consisting of four senior officers comprising of three Technical Officers and one Administrative Officer was constituted to process and examine the options for the ADOs and to assist the competent authority i.e. Director Agriculture, Haryana in finalizing the allocation of ADOs in the two cadres i.e. Administrative Cadre and Soil Conservation Cadre. The committee adopted and followed a criteria for making recommendations for finalizing the cadre-wise allocation and seniority, which reads: “ (i) Due weight-age has been given to the officials who have sufficient experience including the experience on a lower equivalent post in the Soil Conservation side. However, LPA No. 614 of 2010 and other connected cases 7 it has been ensured that their old seniority (as it existed in the General Administrative Cadre) is not disturbed. (ii) Other things being equal, preference has been given to those persons who had passed the B.Sc/M.Sc. Agriculture with Soil Sciences as a major subject. (iii) The candidates belonging to reserved categories have also been placed in the SC/SS/ST Cadre so as to give them due representation in the cadre, though they have less experience on the Soil Conservation side than that of General Category Candidates. (iv)The service particulars of candidates have been corrected after verification of the relevant record. (v) The candidates who have given their options for placing them in the SC/ST/SS cadre after the cut off date i.e. 25.6.97 have not been included in the SC/SS/ST cadre because the letter dated 5.6.97 that options received after 25.6.97 would not be entertained. (vi) Due representation has been given to reserved categories in order to maintain their ratio in the cadre of SC/ST/SS. (vii) While finalizing the seniority list, only name of those employees who were working as ADO as on 25.6.97 have been included.” On the basis of the above criteria, recommendations were made, which were accepted by the Director, Agriculture, the cadre was bifurcated. Most of the petitioners in the writ petitions were those who had opted for absorption in Soil Conservation Cadre and despite they being LPA No. 614 of 2010 and other connected cases 8 senior in the Common Administrative Cadre, they have been assigned the Administrative Cadre and not Soil Conservation Cadre which has been given to their juniors. This primarily is not their grievance for approaching this Court rather it is on the ground that their further advancement in the service career would suffer a prejudice, as persons, who are junior to them in the joint cadre, would now steal a march over them and would receive promotion ahead of them. It was the contention of the petitioners that as per Rule 12 of 1993 Rules, seniority inter-se of the members of service shall be determined by the length of continuous service on any post in the service. Since their cadre was same, therefore, their options should have been accepted by the respondents and by not giving them the option, which they had exercised, they have been placed in a disadvantageous position. In support of their contention, it was stated that as per the joint seniority list maintained, their names figured higher than the employees, who have been assigned the Soil Conservation Cadre. The posts in the Soil Conservation Cadre being less as compared to Administrative Cadre, their chances of promotion were higher and, therefore, they have been put in a disadvantageous position despite they being eligible for appointment in both the cadres as the qualification and experience prescribed under the Rules were identical. Upon notice having been issued, the respondent-State justified the assigning of the cadres to the officials by pointing out that 1159 posts of ADOs in the Administrative Cadre and 141 posts of ADOs in the Soil Conservation Cadre were already in existence and the bifurcation had been done of these posts only as per the assigned posts for each cadre. The decision of the committee and the criteria fixed therefor was sought to LPA No. 614 of 2010 and other connected cases 9 be supported on the ground that weight-age to the experience of the candidates on the posts which were held by them, has been given. Employees with longer experience in the Administrative Cadre were adjusted in the Administrative Cadre while those with longer experience of work in the Soil Conservation side have been adjusted in the Soil Conservation Cadre. This has been done with an idea to have the experienced hands in the respective cadres so that the work under the respective areas could function smoothly and in a better way so that the purpose of bifurcation of the cadres is fulfilled effectively. The other things being equal, preference was given to those persons who had passed the B.Sc./M.Sc. Agriculture with Soil Sciences as a major subject for assigning Soil Conservation Cadre. The inter-se seniority in the Common Administrative Cadre has not been disturbed while assigning seniority in the respective cadres after the bifurcation. The learned Single Judge, on consideration of the respective submissions made by the parties, has proceeded to hold that the criteria adopted by the respondents although does not suffer apparently from any vice of being unfair or unjust but the respondents have not taken into consideration the effect of directing absorption of various persons by ignoring the common seniority of all the officials when they were in the same cadre. As a consequence of absorption, the petitioners would be put in a disadvantageous position as juniors to them in the common cadre would be able to steal a march over them as they would be promoted earlier and the aspect of chances of promotion on one cadre would either getting accelerated or retarded, cannot be completely ignored by the respondents. The Court has further proceeded to hold that it would be appropriate to categorise them in order of their seniority keeping in view the LPA No. 614 of 2010 and other connected cases 10 options given by the employees, as it would be a rational criteria for division of an existing cadre into more than one cadre. The action of absorbing the employees in a cadre on the basis of their posting would not be appropriate or proper criteria as that was not in the hands of the employees and is a fortuitous circumstance purely depending upon the posting given to such employees by the employer. Accordingly, the action of the respondents in assigning the cadre by ignoring the seniority and the options given by the petitioners, has been set aside and a direction has been issued to reconsider and redecide the entire issue by taking into consideration the seniority and the resultant effect thereof while allocating the officials to different cadres. However, the writ petitions preferred by the petitioners, who had not exercised their options, were dismissed and they were held not entitled for any reconsideration. The facts are not in dispute. Although the learned Single Judge has proceeded to hold that the criteria adopted by the respondents for assigning the officials to the two cadres from the common cadre apparently does not suffer from any vice of being unfair or unjust yet had proceeded to look into the effect of absorption viz-a-viz the petitioners and the private respondents in different cadres while overlooking the seniority, which has resulted in unfair result. The grievance primarily, as has been observed by the learned Single Judge as well, is not the bifurcation of the cadre as such but the effect thereof in the service career, which would suffer a prejudice, as persons, who are junior to them in the joint cadre, would now receive promotion in the reallocated cadre prior in time to them in their respective cadres. It is not in dispute that separate posts were assigned for ADOs Administrative Cadre and ADOs Soil Conservation Cadre i.e. 1159 and 141 LPA No. 614 of 2010 and other connected cases 11 respectively. It is true that none of the employees had the choice to ask for or was given an option to work in a particular side in the common cadre. It is not the pleaded case of the petitioners that they had ever protested against their posting in a particular side. The criteria as evolved and followed by the committee, which has been reproduced above, is just and fair and the same has not been found to be arbitrary by the learned Single Judge as well. The power to regulate the conditions of service as provided under Article 309 of the Constitution, is wide enough and would include the power to constitute a new cadre by either merging certain existing cadres or bifurcating the existing cadres. This matter is exclusively within the purview of the Government. It is not the function of the Courts of law to substitute their wisdom and discretion, which has been entrusted on an authority by law. The duty of the Court is to confine itself to the question of legality i.e. whether: (1) there is an error of law, (2) decision making authority has exceeded its powers or has committed a breach of the rules of natural justice, there is an abuse of its powers or has reached a decision which no reasonable person would have reached. In a case where decisions do not fulfil these parameters the Courts are well within their jurisdiction to interfere. A decision of bifurcation of a cadre is essentially a matter of policy. If the criteria adopted for bifurcation of the cadre is just and equitable and does not suffer from any vice of arbitrariness, the same requires to be upheld. Mere chances of promotion is not a condition of service but would at best be termed as incidence of service which cannot be enforced in a Court of law. The fact that there was a reduction in chances of promotion because of such bifurcation or merger, would not LPA No. 614 of 2010 and other connected cases 12 amount to change in conditions of service and, therefore, it cannot be taken as a ground for interference by the Courts, as has been held by the Hon'ble Supreme Court in the case of State of Maharashtra vs. Chanderkant Anand Kulkarni, 1981 (4) SCC 130. When either merger or bifurcation has to take effect, chances of promotion of some of the employees are likely to be enhanced or adversely affected as a consequence thereof but this cannot be a ground for setting aside such merger or bifurcation as it is essentially a policy decision, in which the Courts should not generally interfere with. Mere hardship without there being anything arbitrary in the rule or the criteria adopted by the competent authority does not call for judicial intervention especially when it flows out of the policy, which is not basically illegal. In the present case, the legality of the 1993 Rules, which under Rule 9 provides for five cadres which include Administrative and Soil Conservation Cadres or the decision of the Government to bifurcate the cadre, are not under challenge. Rather the benefit of such bifurcation is being claimed by the petitioners. The challenge has been posed to the criteria, which has been found to be not suffering from any vice of being unfair or unjust even by the learned Single Judge and we are in agreement with the same. The criteria adopted and put into force by the respondents for bifurcation of the cadre is fully justified. Weight-age has been given to the experience of the candidates, which they had acquired either in the Soil Conservation side or in the Administrative Cadre side for allocating them the cadre. The underlying reason for giving such weight-age is to harmonize and streamline the function and to give effect to the purpose for which the bifurcation in the cadre has been brought about. The works LPA No. 614 of 2010 and other connected cases 13 under the bifurcated cadres should not suffer and there should be smooth transaction so that the purpose is fulfilled. It goes without saying that while an employee is working in a particular field, he gains experience in that field and his continuation in such an area is always beneficial not only to the employer and the employee but is best suited and advantageous for the institution as well. The decision and criteria formulated and adopted by the Department is based on well recognized, established and time tested principles of Managerial skills and Management techniques employed by institutions and organizations. Merely because of bifurcation of the cadre chances of promotion of some of the employees have been adversely affected is not a good ground for interference by the Court as it is not a condition of service. Similarly, Courts would not interfere in the criteria adopted by the State for giving effect to such bifurcation, especially when the same is found to be just, reasonable and founded on the rational basis in furtherance to the object sought to be achieved. In S.P.Shivprasad Pipal (supra), Hon'ble Supreme Court in para 19 at page 604 has held as follows:- “19. However, it is possible that by reason of such a merger, the chance of promotion of some of the employees may be adversely affected, or some others may benefit in consequence. But this cannot be a ground for setting aside the merger which is essentially a policy decision. This Court in Union of India v. S.L.Dutta, (1991) 1 SCC 505 examined this contention. In S.L.Dutta's case a change in the promotion policy was challenged on the ground that as a result, service conditions of the respondent were adversely affected since his chances of promotion were reduced. Relying upon the LPA No. 614 of 2010 and other connected cases 14 decision in the State of Maharashtra v. Chandrakant Anant Kulkarni, this Court held that a mere chance of promotion was not a condition of service and the fact that there was a reduction in the chance of promotion would not amount to a change in the conditions of service.” In any case, the petitioners have not, in any manner, suffered prejudice as they have not lost their seniority as alleged as inter-se seniority as it existed in Common Administrative Cadre has not been disturbed while assigning seniority in the respective Cadres after the bifurcation. In view of the above, these appeals succeed. The order passed by the learned Single Judge dated 28.07.2009 is hereby set aside. The writ petitions filed by the petitioners are hereby dismissed. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE December 15th, 2010 pj LPA No. 614 of 2010 and other connected cases 15 LPA No. 614 of 2010 and other connected cases 16