KERALA STATE ELECTRICITY BOARDversusN. SUKESEN AND ORS.

               KERALA STATE ELECTRICITY BOARD                                        A
                              v.
                     N. SUKESEN AND ORS.

                                JULY 23, 1996

              [S.C. AGRAWAL AND B.L. HANSARIA, JJ.]                                  B

      Se1vice Law :

      Elecllicity (Supply) Act. 1948:

      S.79(c) and (k)/Kcrala State Elcct1icity Board (Integration of Board           c
Secret01iat Establishment) Regulations, 1981 (as amended in 1985) :

       Kenda State Elecllicity Board-Intef,"'ation of Secret01iat Se1vice into
general se1vic~Jnter se senio1ity--ln1egration schenie provided for taking into
consideration the length of seroice front the tinte of initial recruit111ent-Held,
                                                                                     D
the scheme not hit by Altic/e 14 of the Constitution-Constitution of lndia
A1tic/e 14:

       Kerala Electricity Board, in 1964 brought into existence the
Secretariat Sen'ice. The officials to this sen'ice were appointed from the
existing common cadre, without conducting any test. In 1981 the Board                E
decided to merge the Secretariat Service into general service by enacting
Kerala State Electricity Board (Integration of Board Secretariat Estab-
lishment) Regulations, 1981. In 1985 the Regulations were amended
providing for taking into account the length of service in fixing inter se
seniority of employees from different categories brought under integration.
The employees mainly belonging to erstwhile Secretariat Service chal-                F
lenged the revised seniority principle as violative of Article 14 of the
Constitution. The High Court struck down the revised principle of
seniority. Aggrieved, the Board and some of the employees belonging to
general establishment filed the present appeals.
                                                                                     G
       Allowing the appeals this Court

      HELD : The principle of seniority as revised by 1985 Order is sus-
tained. The order or 1985 requires the inter se seniority to be determined on
the basis of the length of service in the cadre/category at the time of
integration, and it does not take note of accelerated promotions earned in H
                                        803
    804                    SUPREME COURT REPORTS 11996] SUPP. 3 S.C.R.

A   the Seeretariat Service. 111e record shows that while appointing persons to
    Secretariat Service from general service, no tests or intervie\\'s were con-
    ducted. Besides, the 1985 order only speaks about fixation of relative
    seniority and does not visualise any reduction in rank or reversion. It may
    be that the following of1985 principles would make the Assistant Secretary
    of ersf\-'t'hile Secretariat service junior to the Senior Superintendent in the
B
    general service, but t~at \\'ould not require the Assistant Secretary to be
    demoted to the post of Senior Superintendent. The judgment of the High
    Court is set aside, subject to these clarifications/observations.
                                                           [606-C-D; E-F; 807-A-C]
          Om Pmkash Shmma v. Union of India, [1985] Supp. SCC 218,
C' .xplaincd and applied.

          CIVIL APPELLATE .TURISDJCTION: Civil Appeal No. 3967 of
    1'!90 Etc.

D        From the Judgment and Order dated 5.10.89 of the Kerala High
    Court in W.A. No. 915 of 1987.

          P.S. Poli, T.L. Viswanlha Iyer, Ms. Malini Poduval, K.M.K. Nair,
    Vipin Nair and E.M.S. Anam for the appearing parties.

          The Judgment of the Court was delivered by
E
           HANSARIA J. Kerala State Electricity Board, hereinafter the
    'Board', had one common establishment prior to 1964. A need having been
    felt to have a separate an<l distinct establishment, nan1ed as secretariat
    establishment, the same came lo be formed witl1 effect from 1.4.1964, vide
    order of the Board dated 31.3.1961. With a view to ensure smooth function-
F   ing of the Secretariat Service so formed, the Board, in exercise of po\ver
    conferred by section 79(c) (k) of the Electricity (Supply) Act, made certain
    regulations which, inter a/ia, laid <lown the principle of inter se seniority in
    its clause VII reading as below :

             ·~v1r. The inter se seniority of alJ categories of persons so appointed
G
             initially lo the Secretariat will he determined and finalised with
             reference lo the relative general seniority they held in the parent
             department and their seniccs in the parent department will count
             for all purposes in the Secretariat Service also."

H         2. It \Vas, ho\vever, felt that the separate service \Vas not conducive
••      KERALASTATE ELECTRICITYBD. v. N.SUKESEN [HANSARIA.J.J 805

     to the smooth and efficient discharge of the administrative functions of the    A
     Board; and so, by order dated 14.l.1981 the separate and independent
     status of the Secretariat Service was brought to an end by making regula-
     tions called the Kerala State Electricity Board (Integration of Board
     Secretarial Establishment and General Establishment) Regulations, 1981.
     In these regulations the principle of seniority was laid down as below in       B
     clause 5 ( c) :

             "5.(c). Subject lo clause (I), relative seniority of persons drawn
             from the Secretarial Establishment and General Establishment
             including Accounts Wing and holding equated posts shall be
             determined on the basis of their length of service in the               C
             cadre/category concerned at the ti1nc of intcgrationrr

            3. This principle was amended       to read as below by order of
     7.ll.1985.

             "(a) xxxxx              xxxxx                                           D
             (b) the relative seniority of persons drawn from the secretariat
             establishment and the general cstablishn1ent including the Ac-
             counts Wing shall be determined based on their ranking in the
              advice list of the Kerala Public Service Commission or the Board,
              as the case may be, at the time of initial recruitment by the Kerala   E
              Public Service Commission or the Board to the respective estab-
              lishments under the Board subject to the application of rules
              regarding obligatory departmental tests."

          This virtually required length of service lo be taken note of for
     determining inter-se .seniority.                                                F

           4. The High Court of Kcrala was approached mainly by officers of
     the erstwhile Secretarial Service challenging the revised principle of
     seniority as laid down in 1985. The High Court, by the impugned judgment,
     held that the principle was hit by Article 14 as unequals were treated as G
     equals and has, therefore, quashed the same. These appeals are by the
     Board and by some persons of the General Establishment.

          5. Shri Poti, learned senior counsel appearing for the Board, has
     urged that the High Court \Vas not justified in .setting aside the principle
     of 1985, as such a principle had indeed been found valid by this Court in I-1
    806                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A Om Prakash Shanna v. Union of India, [!985J Supp. SCC 218, which was
    wrongly distinguished by the High Court. Shri Iyer, iearned senior counsel
    appearing for the private respon<l~nts has, however, urged that 0111
    Prakash '.1· case was different on focls and High Court was right in not
    following the same lo sustain the principle or inter se seniority as spelt out
    in 1985.
B
          6. In our opinion, the decision in Om Prakash '.r case has to be applied
  m the instant appeals as well, because there the accelerated promotion
  which some of the respondents got in the cadre of Head Clerks because
  of the trifurcation was not required to be given weight after the different
C serviccs/departn1cnts \Vere atnalgamated again. Here too, the principle of
  illler-se seniority in the order of 1985 has basically sought to do so the same
  by requiring the inter sc seniority to be determined on the basis of the
  length of service in the cadre/category at the time of integration, and not
  by taking note of promotions earned in the Secretariat Service.
D
          7. We have another reason lo sustain the aforesaid principle and the
    sa1ne is that \Ve are not quite satisfied if, \Vhile forn1ing the Secretariat
    Service, the selection of the optccs was really on the basis of merit, ability
    and suitability as was required to be. We have said so becaose the Chair-
    man of the Board, who had played a pivotal role in the selection, had slated
E   before the arbitrator, whose award was pressed into service by Shri Iyer
    and to which we shall advert later, thus: "No tests were conducted for these
    appointments nor intcrv·iews. The selection for this wing \Vas made by n1e
    taking into consideration their fidelity, the confidence that I can have on
    them. Only persons known to me were selected''. In view of this, the award
F   of the arbitrator dated 14.3.1967 holding that there was no ma/a fide or
    victimisation while making actual selection is not 1nuch significant.

        8. Shri Iyer's main concern \Vas that the aforesaid principle of inter-se
  seniority, if sustained, \vould result in reversion of the persons who had got
  accelerated promotion in the Secretariat Service. This was illustrated by
G the learned counsel by drawing our attention lo equation of posts as finding
  place at page 66 of the Paper Book of C.A. No. 3974/90, wherein the post
  of Assistant Secretary of the Secretariat Establishment has been shown as
  equal to Assistant Accounts Officer - the next post below whom in the
  General Establishment being of Senior superintendent. Learned counsel
H contended that the aforesaid principle would require reversion of the
   KERALASTATE ELECTRICITYBD. v. N.SUKESEN[HANSARIA,J.] 807

Assistant Secretary of the Secretariat Service to Senior Superintendect of A
the General Establishment, as the latter may be senior lo the former if the
ranking at the time of the initial recruitment alone was to be taken into
consideration. According to us, ho\vever, this is not the correct reading of
the principle inasmuch as that only speaks about fixation of relative
seniority, and does not visualise any reduction in rank or reversion. lt may
                                                                               B
be that the following of 1985 principle would make the Assistant Secretary
of the illustration junior to the Senior Superintendent, bm that would not
require the Assistant Secretary to he demoted to the post of Senior
Superintendent.

      9. In the aforesaid view of the matter, we set aside the impugned        C
judgment of the High Court, subject to the clarification/ observation made
above. In the facts and circumstances of the case, we leave the parties to
bear their O\Vn costs.

R.P.                                                      Appeals allowed.