Nagendra Vs. State of Karnataka - Court Judgment

Excerpt:
transfer of employees of the karnataka general service (development branch and local government branch) to the karnataka general services (revenue subordinate branch) rules, 1979, and (ii) karnataka taluk development board employees (absorption in karnataka general services (revenue subordinate branch) rules, 1979 - rule 2 -- rules not ultra vires, being state policy equality clause not attracted -- no opportunity envisaged before making rules -- rules incorporate process of absorption as a mode.;absorption of officers of development department of gulbarga, bidar and raichur districts, panchayat extension officers and staff of taluk development boards in corresponding posts of revenue department challenged on the grounds inter alia that rules are beyond rule making power, being opposed to seniority rules are illegal, affected prospects and promotional chances, absorption of accountant as first division clerk not as sheristedar/deputy tahsildar is illegal and denial of previous services is violative of articles 14 and 16 being discriminatory, that absorption is illegal in the absence of right of option.;(i) there is no substance in the contention that the rules are ultra vires based on the decision of the supreme court that articles 14 and 16 do not forbid creation of different cadres or integration of different cadres into one cadre; the decision so to do being that of the state, being a matter of policy equality clause is not attracted.;(ii) undisputedly, these rules are law. there is ao authority which envisages providing for an opportunity of hearing before making a law.;(iii) cadre and recruitment rules of revenue department are framed in exercise of power conferred under proviso to article 309 of the constitution of india. impugned rules which state that notwithstanding anything contained in general recruitment rules and cadre and recruitment rules, persons specified in schedule shall be absorbed in revenue subordinate branch, incorporate process of absorption as a mode. it is nowhere stated that absorption cannot be provided in cadre and recruitment rules in exercise of power conferred under proviso to article 309 of the constitution of india. hence there is no substance in the plea that process of absorption not being one of the mode of recruitment, their absorption is illegal.; -- rule 3 -- scheme of absorption does not deny benefit of previous service -- rule does not destroy previous services, leave benefit, pensioner benefit -- not violative of equality clause.;from scheme of absorption of various officers in revenue department, it is not possible to infer that respondents intend to deny benefit of previous service in respect of employees of taluk development board and confer benefit of previous services in so far as the officials of development branch are concerned. rule 3 of absorption of development branch officials is word to word same as rule 3 of absorption of employees of taluk development board except words underlined. it is fallacious to infer that state intends to discriminate and/or intends to treat them differently. rule 3 of absorption of employees of taluk development board must be read as a whole and should be understood in the context in which it is promulgated words 'services rendered under taluk development board by persons mentioned in column no. 2 shall notwithstanding anything contained in any rules be taken into consideration for determining leave, seniority, pay and pension' should be given its natural meaning. no word or portion of a rule can be treated as inept. if import of rule is understood in the way in which petitioners have understood to contend that their previous services is destroyed or omitted to be reckoned, above words would become redundant and convey no meaning. words `from the date of their absorption' only connotes that on interpolation, those officers should be fitted in seniority/gradation list as on that day in respective cadres, with reference to services rendered in taluk development boards. it only means, promotions made anterior to date of absorption cannot be reviewed and re-opened en the ground that persons of longer service have come into this cadre by process of absorption. these words are of a descriptive nature with reference to which their rights can be worked out in respective cadres reckoning their services rendered in taluk development board and consequences would be the same even in case of absorption of officials of development branch. if words `from the date of their absorption' had not been preceded by other words extracted above it would have been possible to contend that they have to take a re-birth as on that date in respective cadres. may be, impugned rule is inarticulately worded, but function of the court is to give effect to its real intendment. impugned rule, if understood in the above manner, neither there will be destruction of previous services, leave benefit, pensionary benefit nor would it violate equality clause. this is in consonance with the well established cannon on interpretation of statutes.;-- right of option -- no right of option provided before absorption -- no prejudice caused -- service conditions not affected.;on dissolution of district boards and district local boards, personnel working in those establishments are absorbed either in government service or taluk development board. section 242 of karnataka village panchayat and local boards act which provides for absorption of such of those officers has not envisaged providing a right of option before absorption.... there is no rule which affects service conditions. revised pay rules and most of the provisions of k.c.s. rs. are adopted by the boards. no prejudice is caused by not giving a right of option.;-- equivalence -- absorption of accountant of taluk development board as first division clerk in revenue department not unjust or illegal.;minimum qualification required for recruitment of an accountant and first division clerk in karnataka panchayats and taluk boards employees (recruitment and conditions of service) rules, 1961 is a pass in intermediate or p.u.c. or its equivalent qualification. maximum pay of an accountant is rs. 320/- and that of a first division clerk is rs. 290/-. the pay scale of first division clerk in revenue department is rs. 130-290 and that of taluk sheristedar / deputy tahsildar is rs. 225-450 -- the absorption of an accountant of taluk development board with first division clerk of the revenue department cannot be said to be unjust or illegal. there is no substance in the plea that absorption of an accountant of taluk development board as first division clerk in revenue department without determining equivalent post is invalid or illegal, in view of elucidation of scope and ambit of rule 3 of taluk board employees absorption rules, there is no basis for apprehension that there is denial of their previous service rendered in taluk development board. challenge made to these rules is devoid of merit. - section 100: [a.n. venugopala gowda, j] substantial question of law - challenge to the decree of the trial court in the second appeal without questioning the same either under order 41 rule 1 or order 41 rule 22 - permissibility under law - held, section 96 of the code of civil procedure makes provision for appeal being preferred from every original decree. the appeal can be filed by an aggrieved person, prejudicially or adversely affected by the decree. the respondent in the appeal, though he may not have filed an appeal from any part of the decree impugned, may still support the decree to the extent to which it is already in his favour by laying a challenge to a finding recorded in the impugned judgment against him, though he has neither preferred an appeal of his own nor taken any cross objection. the right to file cross objection under rule 22 of order 41 is the exercise of right to appeal, though in a different form. second appeal under section 100 cpc shall lie to the high court from every decree passed in appeal by any court subordinate to the high court, if the case involves a substantial question of law. thus, what can be appealed under section 100 cpc is the decree passed in appeal. therefore, a party who has not challenged the decree of the trial court by preferring an appeal or cross objections before first appellate court, cannot challenge the same in the regular second appeal under section 100 of the code of civil procedure. on facts held, admittedly, the defendants were aggrieved even with the granting of decree of even 1/15th share, which ought to have been appealed against or objected to by them, but they permitted the decree granting of 1/15th share to achieve finality. even if the decree passed by the first appellate court is set aside, still the decree passed by the trial court which was not challenged by the defendants in the first appellate court, shall remain undisturbed and is separable from the decree passed by the first appellate court. - but the former are not having the same service conditions and service benefits as are enjoyed by the latter.orderdoddakale gowda, j.1. validity of rules/orders absorbing certain officers of development department of districts of gulbarga, bidar and raichur. panchayat extension officers having no parent department and ministerial station the establishment of taluk development boards including ex-district boards/ district local boards staff absorbed previously in taluk development board services, in corresponding posts of revenue department, as on 28-7-1976 are questioned by a few officers of revenue department on the ground that interpolation of these officers has marred their prospects, promotional chances have become bleak and rules are ultra vires; while grievance of some absorbed officials is that denial of their previous services is violative of articles 14 and 16 of the constitution of india; some plead for absorption in an equivalent cadre and a few of them contend that absorption without providing right of option is illegal.2. petitioners in writ petition no. 3956 of 1980 are sheristedars, first division clerks and first grade revenue inspector of the revenue department. their contention is that rules providing for absorption is beyond the pale of rule making power; on account of interpolation of various officers, interest seniority of petitioners vis-a-vis absorbed officials is affected; opposed to rule 6 of seniority rules and process of absorption not being one of the method of recruitment, rules/orders through which absorption are made are illegal.3. petitioner in writ petition no. 3303 of 1980 is an official of ex-district board whose services stood absorbed in bantwal taluk development board as per government order dated 22-11-1967. he has been promoted as an accountant on 8-5-1974 in pay scale of rs. 160-320. he pleads for absorption of post of accountant withsheristedar / deputy tahsildars, which according to him would be an equivalent post and his absorption as first division clerk in revenue department is illegal.4. contention of petitioners in writ petitions nos. 2971 and 2972 of 1980 is to quash that portion of the rule or order which has denied them previous services and to direct respondents to reckon their previous services for the benefit of leave, seniority, pay, pension etc. they contend that denial of benefit of previous services rendered in taluk development board is discriminatory and highlyunconscionable.contention of rest of the petitioners is more or less same.5. policy for absorption as embodied in government order no. rdc 52 spl 76 dated 28th july 1976 reads thus:'read: government order no. rdc 164 msc 75, dated 11-8-1975. preamble :1. (a) with the establishment of c.d. blocks in a phased manner in 1950s and 1960s; necessary ministerial staff and field staff was also createdto man the c.d. programme at the block, sub-division, district and division levels. the divisional commissioners and the deputycommissioners of districts were entrusted with the responsibility to provide the ministerial staff. accordingly, except in the 3 districts of gulbarga, bidar and raichur, in all other districts, the deputy commissioners made appointments as per rules in force as if all the new posts created for implementation ofthe c.d. programme fell within their units. thus, no separate cadre of development department has been built up in the 16 districts of the state. it may be mentioned here, that only in the year 1959, a separate cadre and recruitment rules for development department were framed which also contained provisions to fill up the posts by transfer of officials from other departments.(b) only in the 3 districts of gulbarga, bidar and raichur, the officials entertained in connection with the implementation of cd.programme, has been kept as a separate cadre.(c) government have considered the matter in detail and come to the decision that it is necessary to absorb the ministerial staff borne on the development cadre in the 3 districts of gulbarga, bidar and raichur in the revenue department whereby a uniform pattern throughout the state would be brought about.2. of the field staff entertained to implement the c.d. programme : except the panchayat extension officers, all the others are drawn from other departments. government have considered the cases of the officials of this cadre also and decided to absorb them in revenue department.3. the staff borne on the establishment of the taluk development boards which have come into being in pursuance of the provisions of the karnataka village panchayats and local boards act, 1959, along with the ex. dlb staff absorbed in the taluk a development board services, and the staff borne on the establishment of the c.d. blocks are working together with an element of uniformity in the matter of working effort and responsibility. but the former are not having the same service conditions and service benefits as are enjoyed by the latter. the need to remove the disparity has been considered by the government.government after careful consideration are pleased to accord sanction to the absorption of (i) the ministerial staff borne on the development department in gulbarga, bidar and raichur districts (ii) the panchayat extension officers who are having no parent department, as such, (iii) and the ministerial staff borne on the establishments of the taluka development boards, including theex. dlb staff absorbed previously in taluka development board services, as on the date of this order, in the corresponding posts of revenue department, as indicated in theannexure.seniority of these personnel in the respective cadres of revenue department shall count from the date of absorption in revenue department which will take effect from the date of issue of this order.this order issues with the concurrence of the revenue department vide their u.o. note no. rd(b) 3519/76 dated 27-7-1976.'government order no. rdc 133 spl 79, dated 28th november 1979 through which their grievance is redressed sliehtly reads as follows :-'read : -- govt. order no. rdc. 52 spl. 76, dated 28-7-1976. preamble : -- in the government order cited, sanction was accorded to the absorption of (i) the ministerial staff borne on the development department in gulbarga, bidar and raichur districts (ii) the panchayat extension officers having no parent department as such, and (iii) the ministerial staff on the establishment of the taluk development boards including the ex-d.b./d.l.b. staff absorbed previously in taluk development board services, as on the date of the said order, in the corresponding posts of revenue department, as indicated in the annexure thereto. it was further laid down in the said order that the seniority of these personnel in the respective cadres of revenue department which would take effect from the date of issue of the said order.subsequent to the issue of the above order, a number of representations voicing the grievances by and on behalf of the personnel involved in the absorption, over the condition laid down about their seniority in revenue department, have been received by the government. after a thorough examination of all aspects of the matter, the government have decided to modify the government orderdate 28-7-1976 to the extent permissible under the relevant rules and circumstances leading to the absorption of the different categories of staff.

Judgment:
ORDER

Doddakale Gowda, J.

1. Validity of Rules/Orders absorbing certain officers of Development Department of districts of Gulbarga, Bidar and Raichur. Panchayat Extension Officers having no parent department and ministerial station the establishment of Taluk Development Boards including Ex-District Boards/ District Local Boards staff absorbed previously in Taluk Development Board Services, in corresponding posts of Revenue Department, as on 28-7-1976 are questioned by a few officers of Revenue Department on the ground that interpolation of these officers has marred their prospects, promotional chances have become bleak and rules are ultra vires; while grievance of some absorbed officials is that denial of their previous services is violative of Articles 14 and 16 of the Constitution of India; some plead for absorption in an equivalent cadre and a few of them contend that absorption without providing right of option is illegal.

2. Petitioners in Writ Petition No. 3956 of 1980 are Sheristedars, First Division Clerks and First Grade Revenue Inspector of the Revenue Department. Their Contention is that Rules providing for absorption is beyond the pale of rule making power; on account of interpolation of various officers, interest seniority of petitioners vis-a-vis absorbed officials is affected; opposed to Rule 6 of Seniority Rules and process of absorption not being one of the method of recruitment, Rules/Orders through which absorption are made are illegal.

3. Petitioner in Writ Petition No. 3303 of 1980 is an official of Ex-District Board whose services stood absorbed in Bantwal Taluk Development Board as per Government Order dated 22-11-1967. He has been promoted as an Accountant on 8-5-1974 in pay scale of Rs. 160-320. He pleads for absorption of post of Accountant withSheristedar / Deputy Tahsildars, which according to him would be an equivalent post and his absorption as First Division Clerk in Revenue Department is illegal.

4. Contention of petitioners in Writ Petitions Nos. 2971 and 2972 of 1980 is to quash that portion of the Rule or Order which has denied them previous services and to direct Respondents to reckon their previous services for the benefit of leave, seniority, pay, pension etc. They contend that denial of benefit of previous services rendered in Taluk Development Board is discriminatory and highlyunconscionable.

Contention of rest of the petitioners is more or less same.

5. Policy for absorption as embodied in Government Order No. RDC 52 SPL 76 dated 28th July 1976 reads thus:

'Read: Government Order No. RDC 164 MSC 75, dated 11-8-1975. Preamble :

1. (a) With the establishment of C.D. Blocks in a phased manner in 1950s and 1960s; necessary ministerial staff and field staff was also createdto man the C.D. Programme at the Block, Sub-Division, District and Division Levels. The Divisional Commissioners and the DeputyCommissioners of Districts were entrusted with the responsibility to provide the Ministerial staff. Accordingly, except in the 3 Districts of Gulbarga, Bidar and Raichur, in all other Districts, the Deputy Commissioners made appointments as per Rules in force as if all the new posts created for implementation ofthe C.D. Programme fell within their units. Thus, no separate cadre of Development Department has been built up in the 16 Districts of the State. It may be mentioned here, that only in the year 1959, a separate Cadre and Recruitment Rules for Development Department were framed which also contained provisions to fill up the posts by Transfer of officials from other Departments.

(b) Only in the 3 Districts of Gulbarga, Bidar and Raichur, the officials entertained in connection with the implementation of CD.Programme, has been kept as a separate Cadre.

(c) Government have considered the matter in detail and come to the decision that it is necessary to absorb the ministerial staff borne on the Development Cadre in the 3 Districts of Gulbarga, Bidar and Raichur in the Revenue Department whereby a uniform pattern throughout the State would be brought about.

2. Of the field staff entertained to implement the C.D. Programme : except the Panchayat Extension Officers, all the others are drawn from other Departments. Government have considered the cases of the officials of this cadre also and decided to absorb them in Revenue Department.

3. The staff borne on the establishment of the Taluk Development Boards which have come into being in pursuance of the provisions of the Karnataka Village Panchayats and Local Boards Act, 1959, along with the Ex. DLB staff absorbed In the Taluk a Development Board Services, and the staff borne on the establishment of the C.D. Blocks are working together with an element of uniformity in the matter of working effort and responsibility. But the former are not having the same service conditions and service benefits as are enjoyed by the latter. The need to remove the disparity has been considered by the Government.

Government after careful consideration are pleased to accord sanction to the absorption of (i) the ministerial staff borne on the Development Department in Gulbarga, Bidar and Raichur Districts (ii) the Panchayat Extension Officers who are having no parent Department, as such, (iii) and the ministerial staff borne on the establishments of the Taluka Development Boards, including theEx. DLB staff absorbed previously in Taluka Development Board Services, as on the date of this order, in the corresponding posts of Revenue Department, as indicated in theAnnexure.

Seniority of these personnel in the respective cadres of Revenue Department shall count from the date of absorption in Revenue Department which will take effect from the date of issue of this order.

This order issues with the concurrence of the Revenue Department vide their U.O. Note No. RD(B) 3519/76 dated 27-7-1976.'

Government Order No. RDC 133 SPL 79, dated 28th November 1979 through which their grievance is redressed Sliehtly reads as follows :-

'Read : -- Govt. Order No. RDC. 52 SPL. 76, dated 28-7-1976. Preamble : --

In the Government Order cited, sanction was accorded to the absorption of (i) the ministerial staff borne on the Development Department in Gulbarga, Bidar and Raichur Districts (ii) the Panchayat Extension Officers having no parent Department as such, and (iii) the ministerial staff on the establishment of the Taluk Development Boards including the Ex-D.B./D.L.B. staff absorbed previously in Taluk Development Board Services, as on the date of the said order, in the corresponding posts of Revenue Department, as indicated in the Annexure thereto. It was further laid down in the said order that the seniority of these personnel in the respective cadres of Revenue Department which would take effect from the date of issue of the said order.Subsequent to the issue of the above order, a number of representations voicing the grievances by and on behalf of the personnel involved in the absorption, over the condition laid down about their seniority in Revenue Department, have been received by the Government. After a thorough examination of all aspects of the matter, the Government have decided to modify the Government Orderdate 28-7-1976 to the extent permissible under the relevant Rules and circumstances leading to the absorption of the different categories of staff.