UNION OF INDIA & ORS. ETC. ETC. versus S. MAADASAMY AND ANR. ETC. ETC.
[2019] 8 S.C.R. 234, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Ratio
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UNION OF INDIA & ORS. ETC. ETC.
v.
S. MAADASAMY AND ANR. ETC. ETC.
(Civil Appeal Nos.5969-5970 of 2009)
MAY 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 of
Principal, Grade ‘A’ (Senior Scale) with the post of JCIF – Challenge
to – Amended Recruitment Rules quashed and set aside by the
tribunal as also High Court – On appeal held: Recruitment Rules
were amended and the two posts came to be equated after the
concurrence of the UPSC and after the draft rules were approved
by the UPSC – When a conscious decision was taken by the UPSC
and the Government after considering the pros and cons of the
matter and considering the relevant factors, being a policy decision,
the tribunal was not justified in quashing and setting aside the
statutory rules – Thus, the High Court erred in upholding the order
of the tribunal – Even otherwise, the duties to be performed by
JCIF and Principal, Grade ‘A’ (Senior Scale) can be said to be
identical and/or similar in nature.
Disposing of the appeals, the Court
HELD: 1.1 It appears that the High Court dismissed the
writ petition, confirming the judgment and order passed by the
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. Relying upon
the said two decisions of this Court-P.K. Roy and Roop Lal case,
the High Court dismissed the writ petitions preferred by the
appellants-Union of India and confirmed the judgment and order
passed by the tribunal quashing and setting the amended rules
vide notification-G.O. No. 6 of 2015 equating the post of Principal,
[2019]  8 S.C.R. 234
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Grade ‘A’ (Senior Scale) with that of the post of JCIF. However,
neither the 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 also did not consider
the fact that the UPSC gave its concurrence to the amended rules
and only thereafter the rules were amended and the posts were
equated. [Para 6.3] [244-C-E]
1.2 From the affidavit-in-reply filed on behalf of the UPSC
before the tribunal in O.A. No. 814 of 2005, it appears that the
rules were amended after the concurrence of the UPSC and after
the draft rules were approved by the UPSC. From the affidavit-
in-reply filed by the UPSC, it appears that the UPSC gave its
concurrence after due deliberation with the Government from
time to time. 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 being a policy decision, the
tribunal was not justified in quashing and setting aside the
statutory rules. Therefore, the High Court committed a grave
error in dismissing the writ petition and confirming the judgment
and order passed by the 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 that of the post of
JCIF. Even otherwise, on considering the nature and duties of
JCIF
and Principal, Grade ‘A’ (Senior Scale), the duties to be
performed by JCIF and Principal, Grade ‘A’ (Senior Scale) can
be 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 High
Court in Writ Petition arising out of the judgment and order
passed by the tribunal quashing and setting aside the recruitment
rules issued vide notification-G.O. No. 6 of 2015 equating the
post of Principal, Grade ‘A’ (Senior Scale) with that of JCIF, cannot
be 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 High
Court in Writ Petition arising out of the judgment and order
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passed by the tribunal by which the tribunal set aside the order
of transfer is concerned, the same stands disposed of. However,
the liberty is reserved in favour of respondent No. 1-original
applicant to challenge the order treating the period between
15.03.2005 till he attained the age of superannuation as dies-non,
before an appropriate court/forum and as and when such
proceedings are initiated, the same may be considered in
accordance 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 SCC
644 : [1999] 5 Suppl. SCR 310 – distinguished.
P.U. Joshi v. Accountant General, Ahmedabad
(2003) 2 SCC 632 : [2002] 5 Suppl. SCR 573
– referred to.
Case Law Reference
[1968] 2 SCR 186
       distinguished
Para 6.6
[1999] 5 Suppl. SCR 310     distinguished
Para 6.6
[2002] 5 Suppl. SCR 573     referred to
Para 4.6
CIVIL APPELLATE JURISDICTION:  Civil Appeal Nos.5969-
5970 of 2009
From the Judgment and Order dated  29.10.2007 of the High
Court of  Judicature at Madras in Writ Petition Nos. 44921 and 44922 of
2006
A. Mariarputham, Sr. Adv., V. G. Pragasam, Prabu
Ramasubramanian,  S. Manuraj, Advs. for the Appellants.
Pramod Swarup, Sr. Adv., Ms. E. R. Sumathy, Ms. Pareena
Swarup, Ms. Ameet Singh, Ms. Binu Tamta, Advs. for the Respondents.
 The Judgment of the Court was delivered by
M. R. SHAH, J. 1. As both these appeals arise out of the
impugned
common judgment and order passed by the High Court and
are between the same parties, the same are being disposed of by this
common judgment.
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2. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 29.10.2007 passed by the High Court of Madras
in Writ Petition Nos. 44921 and 44922 of 2006, by which the High Court
has dismissed the said writ petitions preferred by the appellants-Union
of India and others and confirmed the judgment and order passed by the
learned 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 present
appeals.
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
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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 applicant.
3.1 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
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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 rules.
3.2 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 purpose.
3.3 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 04.07.2006.
3.4 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
UNION OF INDIA & ORS. v. S. MAADASAMY AND ANR.
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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/
academic.
3.5 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 merits.
4. 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.
4.1  Shri A. Mariarputham, learned Senior Advocate has appeared
on behalf of the appellants.  Learned counsel appearing on behalf of the
appellants has vehemently submitted that, as such, the challenge to the
amended rules by respondent No. 1-original applicant before the learned
Tribunal was limited to equating the two posts and not the entirety of the
rules.  It is further submitted by the learned counsel appearing on behalf
of the appellants that, even otherwise, in the facts and circumstances of
the case,both, the learned Tribunal as well as the High Court have
committed grave error in quashing and setting aside the amended rules
equating the post of Principal, Group ‘A’ (Senior Scale) with that of the
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post of JCIF.  It is submitted that the educational and other qualifications
prescribed for the two posts in question, namely JCIF and Principal,
Grade ‘A’ (Senior Scale) are identical;that the feeder cadre/posts for
both the posts are also identical and having common rules for the two
posts.  It is submitted that, therefore, in that view of the matter, the
equations of two posts cannot be said to be bad-in-law.  It is further
submitted by the learned counsel appearing on behalf of the appellants
that even in the lower cadres, the pattern of having the same rules for a
group 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 Technical
officers.  It is submitted that a person posted as Inspector of Factories is
transferable as Principal and vise-versa etc.
4.2 It is further submitted by the learned counsel appearing on
behalf of the appellants that both, the learned Tribunal as well as the
High Court have materially erred in quashing and setting aside the
amended rules equating the aforesaid two posts, on the ground that the
duties and responsibilities with respect to the two posts are not similar/
identical.  It is submitted that there is no requirement in law that all the
posts clubbed together should be identical in respect of duties and
responsibilities and functions. It is submitted that by the very nature
of
things, it will not be identical.  It is submitted that what is to be seen is
whether the person is capable/competent to discharge the functions of
both the posts.  It is submitted that having regard to the identical,
educational and other qualifications prescribed and coming from  the
feeder cadres common to both, they are competent to man both the
posts and capable of discharging the functions of both the posts.  It is
submitted that, in the present case and in the case of respondent No. 1
himself, in fact, his initial appointed was as a craft instructor; later he
became the Inspector of Factories and thereafter he got promoted as
Principal (Junior Scale) and thereafter got promoted as JCIF.
4.3    It is further submitted by the learned senior counsel appearing
on behalf of the appellants that, even otherwise, the principles laid down
by this Court for an administrative determination as to whether two posts
are equivalent in nature for different purposes such as absorption, counting
the length of service for seniority, cannot be invoked to strike down a
legislative exercise of rule making under the proviso to Article 309 of the
Constitution of India which has been held to be statutory and legislative
in character.
UNION OF INDIA & ORS. v. S. MAADASAMY AND ANR.
[M.R.SHAH, J.]
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4.4 It is further submitted by the learned counsel appearing on
behalf of the appellants that, therefore, on facts the decision of this Court
in the case of Union of India v. P.K. Roy (1968) 2 SCR 186 as well as
the 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 applicable
to the facts of the case on hand, more particularly, when the amended
rules equating the posts were statutory and legislative in character.
4.5  It is further submitted by the learned counsel appearing on
behalf of the appellants that, even otherwise, on facts, both, the learned
Tribunal and the High Court have committed a grave error in quashing
and setting aside the amended rules equating the post of Principal, Grade
‘A’ (Senior Scale) with that of the post of JCIF, inasmuch as the amended
rules were approved by the UPSC and the rules were amended in
consultation with the UPSC and after elaborate discussions thereafter
the UPSC gave its concurrence/approval and thereafter the rules were
amended equating the two posts.
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 is
vehemently submitted by the learned counsel appearing on behalf of the
appellants that, as such, it is ultimately for the Government to take an
appropriate decision on equation of posts.  It is submitted that questions
relating to
the constitution, pattern, nomenclature of posts, cadres,
categories and other conditions of service including avenues of promotions
and criteria to be fulfilled for such promotions pertain to the field of
Policy and within the exclusive discretion and jurisdiction of the State.  It
is submitted that, therefore, the learned Tribunal and the High Court
have committed a grave error in interfering with such a policy decision/
decision of the Government to equate two posts, which were after due
deliberations and in consultation with the UPSC.
4.7 Making the above submissions, it is prayed to allow the present
appeals and quash and set aside the impugned judgment and order passed
by the High Court and the learned Tribunal insofar as quashing and
setting aside the notification – G.O. No. 6 dated 18.03.2005 by which
the post of Principal, Grade ‘A’ (Senior Scale) was equated with the
post of JCIF.
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5. Shri Pramod Swarup, learned Senior Advocate appearing on
behalf of respondent No. 1 has supported the impugned judgment and
order passed by the High Court. It is submitted that the impugned
judgment and order passed by the High Court upholding 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 that of the post of JCIF is absolutely just and proper and considering
the decisions of this Court in P. K. Roy (supra) and Roop Lal (supra).  It
is submitted that as it was found that the nature of duties; responsibilities
and powers exercised by holding the two posts are not similar and identical
and, therefore, the High Court was justified in confirming the judgment
and order passed by the learned Tribunal quashing and setting aside the
amended rules.  Therefore, it is prayed to dismiss the present appeals.
6. Heard learned counsel appearing on behalf of the respective
parties at length.
6.1 As observed hereinabove, now in the present appeals, the
challenge to 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. 814 of 2005 quashing and setting
aside the amended rules equating the post of Principal, Grade ‘A’ (Senior
Scale) with that of JCIF survives.  Therefore, the only question which is
now required to be considered by this Court is
whether, in the facts and
circumstances of the case, the High Court is justified in dismissing the
writ petition and confirming the order passed by the learned Tribunal
quashing 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 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.
Considering the decisions of this Court in the case of P.K. Roy (supra)
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[M.R.SHAH, J.]
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and Roop Lal(supra), the High Court has observed and held that the
equation of posts has to be determined by taking into account the following
factors:
(i) nature and duties of post;
(ii) responsibilities and powers exercised by officer holding a post;
extent of territorial or other charge held or responsibilities discharged;
(iii) minimum qualifications, if any, prescribed for recruitment to
the post; and
(iv) salary of the post.
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 amended rules and only thereafter the rules
were amended and the posts were equated.
6.4 From the affidavit-in-reply filed on behalf of the UPSC before
the learned Tribunal in O.A. No. 814 of 2005, it appears that the rules
were amended after the concurrence of the UPSC and after the draft
rules were approved by the UPSC.  From the
affidavit-in-reply filed by
the UPSC, it appears that the UPSC gave its concurrence after due
deliberation with the Government from time to time.   Relevant
paragraphs of the affidavit-in-reply which are necessary for determination
of the issue involved are as under:
“5.   That the proposal for framing of common Recruitment Rules
for the post of Joint Chief Inspector of Factories and Principal,
Group ‘A’ (Senior Scale) in the scale of pay of Rs. 10000-15200
under the Labour Department of the Government of Pondicherry
in lieu of the existing Recruitment Rules for the post of Joint Chief
Inspector of Factories, was received on 18th March 2003
(ANNEXURE R-I).  The proposal was examined and the
Government of Pondicherry was requested to certify whether
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the duties of both the posts (Joint Chief Inspector of Factories
and Principal, Group ‘A’ (Senior Scale) match to merit framing of
common Recruitment Rules and whether the persons holding the
post of Principal will be able to discharge the duties of the post of
Joint Chief Inspector of Factories effectively and vice versa. In
this connection Commission’s letter, dated 21.05.2003
(ANNEXURE R-II) may be referred to.  It is most respectfully
submitted that in response to Commission’s letter referred to above,
the Government of Pondicherry furnished clarifications vide their
letter, dated 01.08.2003 (ANNEXURE R-III).  Subsequently, the
Government of Pondicherry was also requested to furnish the
duties and responsibilities attached to the post of Joint Chief
Inspector of Factories, vide Commission’s letter, dated 23.10.2003
(ANNEXURE R-IV).  The duties and responsibilities were
furnished by the Government of Pondicherry vide their letter, dated
29.10.2003 (ANNEXURE R-IV-A).  It was found that the duties
of both the posts did not match.  Accordingly, the Government of
Pondicherry was advised vide letter dated 27.11.2003
(ANNEXURE R-IV-B) to explore the possibility of filling the post
by deputation.  In reply, the Government of Pondicherry informed
vide their letter, dated 09.02.2004 (ANNEXURE R-V) that the
suggestion to explore the possibility of filling up the post of Joint
Chief Inspector of Factories by deputation, will not help them in
ensuring the safety
and health of industrial workers.
  6. It is most respectfully submitted that the Government of
Pondicherry, in their letter, dated 09.02.2004 referred to above,
insisted upon having common Recruitment Rules for the posts of
Joint Chief Inspector of Factories and Principal, Group ‘A’ (Senior
Scale), while expressing that their intention that these two posts
are interchangeable, and both the incumbents holding feeder posts
of Inspector of Factories and Principal, Group ‘A’ (Junior Scale)
are capable of discharging their duties of the post of Joint Chief
Inspector of Factories effectively.  The Pondicherry Government
also stated that feeder post for the promotional post of Principal
(Junior Scale), Inspector of Factories and Inspector of Boilers
are also interchangeable and that the Joint Chief Inspector of
Factories and Principal, Group ‘A’ (Senior Scale) are the only
higher posts available for the lower cadre as promotional avenues.
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Therefore, the post of Joint Chief Inspector of Factories cannot
be set a part for deputationists, as suggested by UPSC.
7. It is also most respectfully submitted that the Government of
Pondicherry, in their communication referred to above, clearly
stated that the intention is for creating avenues of promotion to
the cadre of Inspector of Factories and Principal, Group ‘A’ (Junior
Scale), Technical Officer and  Training Officer and the
Government has also brought all these four posts under one
umbrella.  The Government of Pondicherry had stated that since
these four posts were brought under one umbrella, there will be
no difficulty in operating a common Recruitment Rules for the
posts 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 a
common Recruitment Rules will facilitate not only the rotation of
officers at frequent intervals for better administration, but also
will create promotional avenues to the officers holding the feeder
posts.  The Government of Pondicherry further emphasised that
such an action will also meet guidelines of the Chief Vigilance
Commission of India, New Delhi.  Subsequently, the case was
also discussed by Joint Secretary (Labour) with the concerned
officers of UPSC in the Commission on 24.05.2004 and the
representative of the Pondicherry Government was requested
to
submit detailed comment with regard to the requirement of having
a common Recruitment Rules again.  The record of the discussion
held 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 the
Pondicherry Government that there is stagnation in the feeder
grade.  As such, the Government of Pondicherry was requested
to forward a statement indicating the name of the incumbents
holding the posts of Inspector of Boilers, Inspector of Factories,
Technical Officer and Training Officer and Principal, I.T.I. and
also their date of regular appointments in the respective grade.
Commission’s letter, dated 19.11.2004 (ANNEXURE R-VII) may
be referred to.  Finally, having examined the entire proposal
alongwith the details furnished by the Government of Pondicherry,
the Recruitment Rules were concurred by the Commission upon
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insistence of the Government of Pondicherry to have the common
Recruitment Rules in view of the following:
(i) That the feeder post of Principal (Junior Grade) and
Inspector 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 provided
better promotional avenues as some of the incumbents
holding these posts are stagnating in their respective grade.
(iii)  That it is necessary to have a common Recruitment Rules,
because the post of Joint Chief Inspector of Factories is a
sensitive post and there is a need to rotate the officers at
frequent intervals so as to meet the guidelines of the
Central Vigilance Commission.  The Government of
Pondicherry had certified that there is no impediment to
have a common Recruitment Rules for both the posts of
Joint Chief Inspector of Factories and Principal, Group ‘A’
(Senior Scale).”
6.5  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.  In the case of P.U. Joshi (supra)
in paragraph 10, this Court has observed and held as under:
“10. We have carefully considered the submissions made on behalf
of both parties. Questions relating to the constitution, pattern,
nomenclature of posts, cadres,
categories, their creation/abolition,
prescription of qualifications and other conditions of service
including avenues of promotions and criteria to be fulfilled for
such promotions pertain to the field of policy is within the exclusive
discretion and jurisdiction of the State, subject, of course, to the
limitations or restrictions envisaged in the Constitution of India
and it is not for the statutory tribunals, at any rate, to direct the
Government to have a particular method of recruitment or eligibility
criteria or avenues of promotion or impose itself by substituting its
views for that of the State. Similarly, it is well open and within the
competency of the State to change the rules relating to a service
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and alter or amend and vary by addition/substraction the
qualifications, eligibility criteria and other conditions of service
including avenues of promotion, from time to time, as the
administrative exigencies may need or necessitate. Likewise, the
State by appropriate rules is entitled to amalgamate departments
or bifurcate departments into more and constitute different
categories of posts or cadres by undertaking further classification,
bifurcation or amalgamation as well as reconstitute and restructure
the pattern and cadres/categories of service, as may be required
from time to time by abolishing the existing cadres/posts and
creating new cadres/posts. There is no right in any employee of
the State to claim that rules governing conditions of his service
should be forever the same as the one when he entered service
for all purposes and except for ensuring or safeguarding rights or
benefits already earned, acquired or accrued at a particular point
of time, a government servant has no right to challenge the authority
of the State to amend, alter and bring into force new rules relating
to even an existing service.”
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
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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 posts
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.
7.1 In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court in Writ Petition
No. 44922 of 2006 arising out of the judgment and order dated 04.07.2006
passed by the learned Tribunal in O.A. No. 814 of 2005 quashing and
setting aside the recruitment rules issued vide notification – G.O. No. 6
of 2015 equating the post of Principal, Grade ‘A’ (Senior Scale) with
that of JCIF, is hereby quashed and set aside.  The appeal arising out of
Writ Petition No. 44922 of 2006 is
hereby allowed accordingly.   No
costs.
7.2  Now, so far as the impugned judgment and order passed by
the High Court in Writ Petition No. 44921 of 2006 arising out of the
judgment and order passed by the learned Tribunal dated 04.07.2006 in
O.A. No. 218 of 2005 by which the Tribunal set aside the order of
transfer is concerned, the same stands disposed of, as observed
hereinabove.  However, the liberty is reserved in favour of 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 an appropriate court/forum and as and when such
proceedings are initiated, the same may be considered in accordance
with law and on merits.
Nidhi Jain
                           Appeals disposed of.
UNION OF INDIA & ORS. v. S. MAADASAMY AND ANR.
[M.R. SHAH, J.]