Case: UNION OF INDIA AND ORS. ETC. ETC Vs. S. MAADASAMY AND ANR. ETC. ETC

3. The facts leading to the present appeals in nutshell are as under:That respondent no. 1 herein-original applicant initially joined the services in the Government of Puducherry as a Craft Instructor in the Labour Department on 03.11.1975 and was appointed as the Group Instructor on regular basis. That, thereafter he was promoted as Inspector of Factories on 27.09.1982 and as Principal, Group A (Junior Scale) on regular basis w.e.f. 25.08.1989. That, thereafter on 26.07.2001, he was promoted as the Joint Chief Inspector of Factories (hereinafter referred to as the JCIF) on regular basis. The promotion of respondent No. 1-original applicant was challenged by one Sri P.S. Krishnamurthy, who was promoted as Principal, Group A (Junior Scale) subsequent to the promotion of respondent No. 1¬ original applicant. On the representation made by the said Sri P.S. Krishnamurthy, the Government initiated steps to convene a review DPC, but the same was rejected by the UPSC. Thereafter, respondent no. 1-original applicant joined duty in the said post 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 was dismissed by the Central Administrative Tribunal (for short Tribunal) on 29.07.2001. According to the appellants, the Government of Puducherry also sent a proposal to UPSC for amendment of the recruitment rules equating the post of Principal, ITI held by Sri P.S. Krishnamurthy with that of JCIF. It appears that pursuant to the draft recruitment rules equating the posts, respondent No. 1-original applicant was transferred from JCIF and posted as Principal, Group A (Senior Scale) on 30.09.2003. It appears that, in the meantime, in the year 1998 the Government of Puducherry decided to create one post of Principal (Senior Scale) (Rs.3000¬4500/¬ later revised to Rs.10,000¬15200/¬) in the Government ITI at Karaikal. According to the Department, the same was pursuant to the order of the Tribunal, based on the number of students at ITI, Karaikal being more than 400. The same was done in anticipation of the approval of the Government of India, by keeping one post of Principal (Junior Scale) in abeyance. That the Government of India, by order dated 19.10.2000 sanctioned the proposal for creation of the post of Principal, Group A (Senior Scale) subject to the condition that one post of Principal (Junior Scale) which was kept in abeyance, should be abolished. That, thereafter respondent No. 1 working as Principal (Junior Scale) in ITI, Puducherry was promoted to the post of JCIF vide order dated 26.07.2001. That, thereafter on 17.09.2001, pursuant to the approval received from the Government of India for the creation of one post of Principal (Senior Scale), one post of Principal (Junior Scale) was abolished. It appears that pursuant to the draft recruitment rules equating the posts of Principal, ITI and the JCIF, respondent No.1-original applicant was transferred from JCIF and posted as Principal, Group A (Senior Scale) on 30.09.2003. That the said order was challenged by respondent No. 1 herein-original applicant before the learned Tribunal by way of O.A. No. 869 of 2003. That the said O.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 learned Tribunal came to be dismissed by the High Court on 16.02.2005. At this stage, it is required to be noted that while quashing and setting aside the order dated 30.09.2003 transferring respondent No. 1 from JCIF to Principal, Group A (Senior Scale), the learned Tribunal held that reliance placed on draft recruitment rules to support the transfer, cannot be sustained, as the mere approval of the Lt. Governor is not enough and the consultation with and approval of the UPSC is required and thereafter, it has to be notified. The Tribunal also held the transfer as mala fide and passed with ulterior motive. The Tribunal also observed and held that after the rules are approved by UPSC and notified, the Government would be at liberty to make the transfer of the original applicant3.1 It appears that, thereafter the notification being G.O. No. 6 dated 08.03.2005 to amend the recruitment rules relating to the post of JCIF/Chief Principal, Group A (Senior Scale) was published on 15.03.2005. 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 of JCIF, Puducherry. The said order of transfer came to be challenged by respondent No. 1-original applicant before the learned Tribunal by way 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 recruitment rules 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 (Senior Scale) and also to set aside the said amended recruitment rules3.2 That the learned Tribunal quashed and set aside the order of transfer dated 15.03.2005 stating that the same was mala fide and passed with an ulterior motive. The learned Tribunal also allowed O.A. No. 814 of 2005 and held that the amended rules are arbitrary and violative of Articles 14 and 16 of the Constitution of India. According to the learned Tribunal, the purpose for bringing the amended rules was not germane, but was directed only to achieve a different purpose3.3 Feeling aggrieved and dissatisfied with the order passed by the learned Tribunal in O.A. No. 218 of 2005 quashing and setting aside the order of transfer dated 15.03.2005 and the judgment and order passed in O.A. No. 814 of 2005 quashing and setting aside the amended recruitment rules equating the post of Principal Group A (Senior Scale) with that of the post of JCIF, the appellants herein-Union of India and others preferred writ petitions before the High Court. That, by the impugned common judgment and order, the High Court has dismissed both the writ petitions and confirmed the judgment and order passed by the learned Tribunal quashing and setting aside the order of transfer dated 15.03.2005 and setting aside the amended rules equating the post of Principal Group A (Senior Scale) with that of the post of JCIF. That, by the impugned judgment and order, the High Court has dismissed both the writ petitions. Hence, the present appeals challenging the impugned common judgment and order passed by the High Court in Writ Petition Nos. 44921 and 44922 of 2006 confirming the judgment and order passed by the learned Tribunal in O.A. No. 218 of 2015 and O.A. No. 814 of 2005 dated 04.07.20063.4 Now, so far as the challenge to the impugned common judgment and order passed by the High Court dismissing the writ petition and confirming the judgment and order passed by the learned Tribunal in O.A. No. 218 of 2005, by which the learned Tribunal set aside the order of transfer dated 15.03.2005 is concerned, it is the admitted position that in view of the subsequent development and respondent No. 1 herein¬original applicant has retired on attaining the age of superannuation, as such, the challenge to the order passed by the High Court confirming the order passed by the learned Tribunal quashing and setting aside the order of transfer dated 15.03.2005 has become infructuous/academic. Even otherwise, there are concurrent findings given by both, the learned Tribunal as well as the High Court holding that the order of transfer was mala fide and with the oblique motive. Therefore, the appeal challenging the impugned judgment and order passed by the High Court dismissing the writ petition and confirming the judgment and order passed by the learned Tribunal in O.A. No. 218 of 2005 stands disposed of as infructuous/academic3.5 However, the question still remains how the period from the order of transfer dated 15.03.2005 till respondent No. 1¬original applicant attained the age of superannuation is to be treated/considered. It appears that at the time when respondent No. 1-original applicant attained the age of superannuation, he has been paid the retirement benefits and the pension/pensionary benefits vide order dated 18.08.2016 and the period from 15.03.2005 till he attained the age of superannuation is treated as dies¬non and he has been paid the pension/pensionary benefits accordingly. Therefore, it will be open for respondent No. 1-original applicant to challenge the order dated 18.08.2016 treating the period between 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 accordance with law and on its own merits4. In view of the above, now the challenge to the impugned judgment and order passed by the High Court confirming the order passed by the learned Tribunal in O.A. No. 814 of 2005 by which the amended recruitment rules vide notification ¬ G.O. No. 6 dated 08.03.2005 equating the post of Principal, Grade A (Senior Scale) with that of JCIF survives.

Reasoning: 6.2 From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petition, confirming the judgment and order passed by the learned Tribunal quashing and setting aside the amended rules equating the post of Principal, Grade A (Senior Scale) with the post of JCIF mainly on the ground that the nature of duties of both the posts, responsibilities and powers exercised by the officers holding the posts are not similar and/or identical.6.3 Relying upon the aforesaid two decisions of this Court, the High Court has dismissed the writ petitions preferred by the appellants herein-Union of India and has confirmed the judgment and order passed by the learned Tribunal quashing and setting the amended rules vide notification – G.O. No. 6 of 2015 equating the post of Principal, Grade A (Senior Scale) with that of the post of JCIF. However, neither the learned Tribunal nor the High Court has considered the relevant factors which were considered while amending the rules and equating the two posts. The High Court has also not considered the fact that the UPSC gave its concurrence to the emended rules and only thereafter the rules were amended and the posts were equated6.5 From the aforesaid, it appears that the UPSC gave its concurrence after having due deliberations and considering the relevant factors and only thereafter the rules came to be amended and the two posts in question came to be equated.6.6 Thus, when a conscious decision was taken by the UPSC and the Government while amending rules and equating the two posts after considering the pros and cons of the matter and considering the relevant factors referred to and reproduced hereinabove, being a policy decision, the Tribunal was not justified in quashing and setting aside the statutory rules. Therefore, the High Court has committed a grave error in dismissing the writ petition and confirming the judgment and order passed by the learned Tribunal quashing and setting aside the amended rules by notification – G.O. No. 6 of 2015 equating the post of Principal, Grade A (Senior Scale). Now, so far as the reliance placed upon the decisions of this Court in the cases of P.K. Roy (supra) and Roop Lal (supra) is concerned, on considering the decisions, we are of the opinion that, in the facts and circumstances of the case, those decisions shall not be applicable to the facts of the case on hand. The decision in the case of P.K. Roy (supra) related to administrative determination of equivalence between different posts in the context of State re¬ organization and absorption of individuals in equivalent posts. The decision in the case of Roop Lal (supra) related to absorption of a Sub-Inspector belonging to BSF in the Delhi Police when he was serving on deputation, and period to be counted for seniority. Therefore, on facts, the said decision shall not be applicable to the facts of the case on hand. Even otherwise, on considering the nature and duties of both the decisions, namely JCIF and Principal, Grade A (Senior Scale), we are of the opinion 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 are unable to agree with the view taken by the High Court dismissing the writ petitions and confirming the judgment and order passed by the learned Tribunal quashing and setting aside the amended rules by notification – G.O. No. 6 of 2015 equating the post of Principal, Grade A (Senior Scale) with the post of JCIF. The impugned judgment and order passed by the High Court as well as the judgment and order passed by the learned Tribunal deserve to be quashed and set aside.