Ammini Amma vs State of Kerala and others

V.P. Gopalan Nambiyar, J.—The petitioner entered service in the Travancore-Cochin State as a tower Division Clerk in 1951; was promoted as an Upper Division Clerk, and joined duty as such in February 1961; and was promoted as an Assistant Sales-tax Officer and joined as such on 27-4-1964. Consequent on he retrenchment of posts of Sales-tax Inspectors, the petitioner was one of those ordered to be reverted by proceedings of the board of Revenue(2nd respondent) dated 13-8-1965, a copy of which has been filed as Ex. P.3. According to the petitioner, this order of reversion could have been avoided if the State had integrated the services of the Upper Division Clerks and Lower Division Clerks in the Sales-tax Department of this State, and if the Travancore-Cochin wing of this Department, to which the petitioner belongs, had been spared the discriminatory treatment meted out to it, by the State. The petitioner accordingly prays for a writ of mandamus to the respondents to integrate the Upper Division Clerks and Lower Divisions Clerks in the Agricultural income tax and Sales-tax. Departments of the State, and for suitable directions restraining the respondents from continuing the discriminatory treatment meted out to the said Clerks of the Malabar area, vis-�-vis the corresponding staff of the Travancore-Cochin area. The complaint is that vacancies in the posts of Upper Division Clerks in the Malabar area are filled up by the Malabar personnel alone, with the result that almost all Lower Division Clerks in the Malabar area have got promoted as Upper Division Clerks; and length of continuous service in the cadre of Upper Division Clerks obtained by such unfair promotions would place them in an advantageous position over the Travancore-Cochin personnel in the matter of promotion to the next highest cadre of the Assistant Sales-tax Officers, Sales-tax Inspectors, and Agricultural income tax Inspectors. In paragraph 3 of her affidavit, the petitioner alleged that there were 101 Lower Division Clerks in the Malabar area, of which one was an Attender and all of them had in course of time got promoted as Assistant Sales-tax Officers. This allegation is denied in Paragraph 7 of the counter affidavit of the State, where the correct position, with particulars, is disclosed. O.P. No. 3243 of 1961 was filed by one of the Travancore-Cochin personnel for a writ of mandamus to the State to take steps to integrate the Lower Division and Upper Division Clerks in Agricultural income tax and Sales-tax Departments of the State. The learned Judge who heard the O.P. (Govindan Nair, J.) read an assurance in paragraph 10 of the counter-affidavit filed by the State that steps are being taken for the purpose, and directed that these should be expedited. A copy of the judgment in that O.P. is Ex. P.2.

According to the counsel for the respondents and for the intervener, no integration of the services concerned in this O.P. is either possible or contemplated (vide paragraphs 6,9 and 11 of the counter affidavit of the State): and these Departments are excluded from the purview of service integration as appointments borne on a district-wise unit under the Madras set up. Paragraph 10 of the counter-affidavit of the State in O.P. No. 3243 of 1961, from which an assurance was read by the learned Judge who disposed of the same, is extracted in paragraph 10 of the present counter-affidavit, and it was submitted by the Government Pleader that even in the said paragraph, it was made clear that there would be no integration in the clerical cadre of the Departments concerned in this O.P.

The question that calls for determination is whether there is a statutory or a public duty on the part of the State, to integrate the services with which we are concerned in this O.P., and whether the stand taken by the respondents and the intervener that the integration of such services is impossible, is justified. The statutory or public duty to integrate, the performance of which is sough to be compelled by mandamus, was rested on the provisions of section 115 of the States Re-organization Act. The relevant parts of the said section read as follows:-

(1).................................................................................

The Central Government may by order establish one or more Advisory Committees for the purpose of assisting it in regard to-(a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras; and (b) the ensuring of fair and equitable treatment to all persons affected by the "provisions of this section and the proper consideration of any representations made by such persons.

The foregoing provisions of this section shall not apply in relation to any person to whom the provisions of section 114 apply.

Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of the service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his "disadvantage except with the previous approval of the Central Government.

I cannot, on the language of the section, read a statutory obligation to integrate, which can be compelled by mandamus. Counsel for the petitioner, contended that the expression ''may'' in section 115 (5) must be understood as ''must or ''shall'' as the exercise of the power is coupled with certain benefits conferred upon the members of the service sought to be integrated. But, as would appear to be recognized by the section itself, integration of service is not always an umpired advantage and the proviso to section 115 (7) therefore provides that the conditions of service prior to 1-11-1956 shall not be varied to the disadvantage of a person except with the previous approval of the Central Government. I cannot therefore regard the duty to integrate the services, as in all cases, mandatory. Assuming it is, the duty is laid on the Central Government, which is not a party to this writ petition. The prayer for a writ of mandamus directing the State, to integrate the services concerned must, for these reasons fail.

For the respondents and for the intervener, it was pointed out that integration of services in the present case is impossible and would contravene the statutory guarantee embodied in the proviso to section 115 clause 7 of the States Reorganization Act. My attention was drawn to the Madras Ministerial Service Rules. Categories 12 and 14 of Rule 1 of the said Rules comprise the service with which are concerned in this O.P. Rules 4 and 5 provide for promotion and appointment to the various categories or Grades. Rule 10 reads:

Appointing Authority-The appointing authorities for the categories and posts specified in column(1) of Annexure II shall be the authorities specified in the corresponding entry "in column'' (2)thereof.

Except as otherwise provided in the said Annexure, all powers of first appointment, discharge, suspension or termination of probation, re-appointment, promotion, transfer and appointment as full member in respect of the said categories and posts shall be exercised by these authorities.

Rule ii (v) of the Rules shows that the office of the Commercial Tax Officers, the Deputy Commercial Tax Officers etc. is to be regarded as a "departmental unit" for the purpose of direct recruitment. Annexure II of the Rules shows that in the offices of Commercial Tax Officers and Subordinate officers all members of the service are generally to be appointed by the Commercial Tax Officer concerned (vide item 3 of schedule II, under the head ''Commercial Tax Department''). It is clear from the above provisions that promotions to the category of Upper Division Clerks have to be made on a district-wise basis by the Commercial Tax Officer concerned. Rule 2 shows that there can be direct recruitment to the post of Upper Division Clerks and Rule 5 read with Annexure I shows that the post of an Upper Division Clerk with which we are concerned is a selection post.

The Madras Ministerial Service Rules are statutory rules framed under Article 309 of the Constitution and it was admitted before me that by reason of section 119 of the States Re-organization Act, the said Rules continue in the Malabar area of this State until otherwise provided for by the Kerala Legislature or other competent authority. No such provision was brought to my notice.

That integration of services regarding posts included in the district-wise unit was impossible would appear to have been recognized in proceedings of the Government dated 29.12.1956, a copy of which has been filed as Ex. P. 1. The first two paragraph of the same may conveniently be extracted.

GENERAL:-

The Government have had under consideration the question of how best the personnel of the Travancore-Cochin State and those allotted from Madras consequent on the formation of Kerala State might be integrated in pursuance of the provisions of clauses 115 and 116 of the States Re-organization Act. In May 1956, at the instance of the Government of India, a Conference of Chief Secretaries and other State Representatives was held at New Delhi to discuss this subject and certain broad conclusions were reached. Keeping those conclusions in view and taking also into account the special nature of the problems in integrating T.C. staff with "the staff allotted from Madras, the following principles are framed for the integration of staff in the Kerala State.

EXTENT OF APPLICABILITY:-

These principles shall not apply to the All India Services. They shall also not apply to such of the cadres in Malabar and Kasargod as are organized on a District basis under the Madras administration; that is to say, the staff of which is liable to serve only in Malabar and South Kanara Districts and whose seniorities, promotions and confirmations are regulated with reference to posts included in the District Unit.

These units will remain as they are for the present and will not be integrated on a State wise basis

(Under-lining mine)

The lines underlined recognize that integration of posts included in the District Unit was not to be thought of. There was some controversy before me as to whether the expression "for the present" occurring in the last sentence of paragraph 2 of the above proceedings are to be understood as meaning only as a temporary phase, but the words following, namely that the posts will not be integrated on a State-wise basis, seems to make it clear that integration in regard to them, had to be ruled out.

For the respondents and the intervener it was contended that district-wise promotion was an essential condition of service of the. Lower Division Clerks in Malabar area governed by the Madras Ministerial Service Rules, and any integration of service varying the same to the disadvantage, of the Malabar personnel could be effected only with the previous approval of the Central Government. Therefore it was contended that a writ of mandamus should for that reason, be refused. It was contended by the counsel for the petitioner that by item 3 of schedule II of the Madras Ministerial Service Rules under the head ''Commercial Tax Department'', the Board of Revenue is given a power to transfer Upper Division and Lower Division Clerks from one Division to another and from a district to the Board''s office, and that this would militate against the district being regarded as a unit for purpose of promotion. I do not think it would. The ordinary power of transfer and promotion is provided in Rule 10 read with schedule II. and the Board of Revenue''s power of transfer is really an extraordinary power by way of an exception to the general rule, as is clear from a perusal of Annexure II itself. I am satisfied that integration of service of Lower Division Clerks and Upper Division Clerks concerned in this O.P. cannot be had without the approval of the Central government, as provided in the proviso to section 115 (7) of the States Re-organization Act.

The counsel for the petitioner in the course of his argument stated that integration of service had been effected in the Revenue Department (also stated to be organized on a District-wise basis), by Government proceedings dated 9.3.1966, subsequent to the filing of this O.P. Although the petitioner''s counsel took time to study the said proceedings and develop an argument based on Article 14, the same was not developed or pressed at the further hearing. But generally it was argued that the inequities resulting from non-integration would attract Article 14. For respondents, it was pointed out that conditions of service of the Malabar and Travancore-Cochin personnel with which we are concerned in this O.P., are essentially different; that in Malabar, Upper Division Clerk''s post is a selection post to which promotion is by merit and not by seniority (vide Rule 5); and that there can be direct recruitment to the post of an Upper Division Clerk in Malabar, but not in Travancore-Cochin area. It Was also explained in the counter-affidavit that the Travancore-Cochin personnel Were subject, to graduate no-graduate ratio in the matter of promotions, and that was to a great extent responsible for impeding the promotion of the petitioner. These have been explained in paragraph 9 of the counter-affidavit of the State. Having regard to the different conditions of service, prevailing in the different geographical regions of this State, no violation based on Article 14 of the Constitution can be postulated. The classification, if at all is based on intelligible differentia, and can, besides, be justified on geographical considerations based on historical reasons.

It has been stated in paragraph 6 of the counter-affidavit of the State that promotions of Upper Division Clerks to the next higher grade has been directed to be made from among the Upper Division Clerks of Malabar and Travancore-Cochin areas with respect to the length of service in the Upper division Cadre, by a. G.O. dated 18.1.1960. It is also stated in paragraph 11 of the counter-affidavit, that by G.O. dated 27-3-1965 the Assistant Sales-tax Officers/Agricultural income tax Inspectors/Upper Division Clerks of the Travancore-Cochin area and the Upper Division Clerks of Malabar area, have been equated and that this common Seniority List will serve the purpose of promotion to the next higher category of Assistant Sales-tax Officers-etc., and that with the issue of this order the integration of services of this Department is complete, I am unable to see any case of discrimination or discriminatory treatment having regard to the different conditions of service and methods of recruitment and promotion in the different geographical areas of this State. This writ petition is dismissed. I make no order as to costs.