Full Judgment Text
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PETITIONER:
TAMIL NADU EDUCATION DEPARTMENT MINISTERIAL & GENERALSUBORDI
Vs.
RESPONDENT:
STATE OF TAMIL NADU & ANR.
DATE OF JUDGMENT23/10/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION:
1980 AIR 379 1980 SCR (1)1026
1980 SCC (3) 97
CITATOR INFO :
R 1981 SC1591 (9)
R 1987 SC1527 (35)
ACT:
Civil Service-Integration of two services-Government
revising policy-G.O. issued integrating staff of ’A’ and ’B’
Wings of service, fixing ratio for promotion & principle of
computation f service in determining common seniority-
Whether permissible and valid.
HEADNOTE:
The State of Tamil Nadu had schools at various levels,
primary, middle and high which were run by the public sector
consisting of Panchayats, District Boards and the
Government. Progressively, Panchayat schools were absorbed
by District Boards and eventually those managed by the
latter were taken over by the Government. In 1970, the State
Government took a major policy decisions that all District
Board schools be taken over with effect from 1st April 1970.
By G.O.M.S. No. 761 dated 16th May, 1970 the teaching and
non-teaching personnel were absorbed as a separate service
in the Education Department named the Tamil Nadu Educational
Subordinate Service. The ministerial service, which related
to the non-teaching staff, also was kept separate. The
direct consequence of the maintenance of two separate
services was that while promotional prospects were available
to Government employees, they were not open to the former
District Board servants on their absorption into Government
service. This led to agitation and representation.
Government considered afresh the question, and by G.O.
1786 dated October 17, 1974 reorganised the service, to
provide that all Government Schools’ servants be called the
’A’ Wing and the staff of the former District Board Schools
be referred to as ’B’ Wing and decided that as complete
integration of the be referred to as ’B’ Wing and decided
that as complete integration of the Wings was
administratively difficult, they be kept separate as two
Wings of the Tamil Nadu Educational Subordinate Service and
the Tamil Nadu Educational Service. The personnel of the ’B’
Wing represented to the Government that ever since their
absorptional as Government servants with effect from April
1, 1970 they were not having enough promotional avenues.
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Government again examined the matter, decided to re-
integrate these Wings and for this purpose passed G.O. No.
1968 dated November 2, 1978 which provided for fixing the
ratio between the two Wings in the matter of promotion and
also the principle for computation of service in determining
the common seniority.
In the writ petitions to this Court, the petitioners
contended that there was no rational formula for integration
of the two separate Wings; the methods of recruitment,
qualification and seniority provided for the two wings being
different, their integration into a common service cadre and
equalisation of their service conditions was violative of
Articles 14 and 16. The ’B’ Wing personnel having been
absorbed into Government service with effect from April 1,
1970
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it was not permissible to grant seniority from a date
anterior to their eligibility as Government servants.
The State Government however contended that the
decision for integration of the two wings was taken after
examining the matter in great detail and taking into account
the number of personnel of different categories in both the
wings and their promotional opportunities.
Dismissing the petitions,
^
HELD: 1. The students who are coached for examinations,
the syllabus for such courses and the nature of the teaching
are virtually identical in the two sets of schools and the
qualifications of the teachers also resemble. In this
background, the State probably assumed as inadmissible of
contrary argument that the quality of the service, the
nature of the qualifications for employment and other
features were de facto identical and consequentially service
in District Board Schools and service, in Government Schools
could be legitimately equated for purposes of reckoning
seniority. Mathematical precision in equation is a vain
chase. [1034 B-C]
2. In Service Jurisprudence integration is a
complicated administrative problem where, in doing broad
justice to many, some bruise to a few cannot be ruled out.
Some play in the joints, even some wobbling, must be left to
Government without fussy forensic monitoring, since the
administration has been entrusted by the Constitution to the
Executive, not to the Court. All life, including
administrative life, involves experiment, trial and error,
but within the leading strings of fundamental rights, and,
absent unconstitutional ’excesses’, judicial correction is
not right. Under Art. 32, this Court is the constitutional
sentinel, not the national ombudsman. [1031 A-B]
In the instant case even if the quota rule is an
administrative device to inject justice into the integrating
process, the ratio cannot be arbitrary nor based on
extraneous factors. [1031-D]
3. The ratio of 5:3 and 3:2 respectively were
prescribed for the ministerial staff and teaching staff,
taking a realistic note of the total numbers of the two
equivalent groups viz. quondom District Board servants and
relative Government School staff. This is not an irrational
criterion when coalescence of two streams springing from two
sources occurs. [1030 H]
4. Having regard to the strength of the District Board
staff to be inducted, the ratio is rational. A better
formula could be evolved, but the court cannot substitute
its wisdom for Government’s, save to see that unreasonable
perversity, mala fide manipulation, indefensible
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arbitrariness and like infirmities do not defile the
equation for integration. [1031 F]
5. All the schools having been taken over by the State
directly the personnel had to be woven into the basic
fabric. Some relevant formula had to be furnished for this
purpose so that the homogenisation did not unfairly injure
one group or the other. In 1970 Government chose not to
integrate but to keep apart. Later, this policy was given
up. The court cannot quarrel if administrative policy is
revised, nor strike down the order because Government have
responded to the question hour or re-examined the decision
at the instance of a sensitive minister. [1031H-1032C]
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6. In the area of equation, an overall view, and not a
meticulous dissection, matters. [1033C]
7. Policy is not static but is dynamic and what weighed
with the Government when panchayat institutions were
amalgamated with the District Board institutions might have
been given up in the light of experience or changed
circumstances. What was regarded as administratively
impractical might, on later thought and activist
reconsideration, turn out to be feasible and fair. The court
cannot strike down a G.O., or a policy merely because there
is a variation or contradiction. What is important is to
know whether mala fides vitiates or irrational and
extraneous factor fouls. [1034G-H, 1035A]
8. Once the principle is found to be rational the fact
that a few freak instances of hardship may arise on either
side cannot be a ground to invalidate the order or
the policy. However unhappy it is to see the seniors of
yesterday becoming the juniors of today, this is an area
where, absent arbitrariness and irrationality, the court has
to adopt a hands-off policy. [1035C-D]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition Nos. 272 and 399
of 1979. (Under Article 32 of the Constitution)
S.V. Gupte (399/79), S. Govind Swaminathan (272/79),
K.R. Choudhary and N.S. Sivam, for the Petitioners.
K.K. Venugopal, Addl. Sol. Genl., A.V. Rangam, for
Respondent No. 1.
Y.S. Chitale, A.K. Sen, P.N. Ramalingam, R. Mohan and
A.T. M. Sampath, for Respondents Nos 3-4.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-These two writ petitions under Art. 32
of the constitution involve identical, though familiar,
constitutional questions based on Arts. 14 and 16 covered by
rulings of this Court. The setting too is familiar as also
the submissions. For these reasons, a brief narration of the
facts, a terse enunciation of the law and a common judgment
for both will suffice.
The Tamil Nadu State had schools at the various levels,
primary, middle and high, run by the public sector
consisting of Panchayats, District Boards and Government.
Progressively, Panchayat Schools are absorbed by District
Boards and, eventually, those managed by the latter were
taken over by Government.
We are not concerned with the teaching and non-teaching
staff under the Panchayats and their service fortunes when
fused into District Board service, except to notice that in
integration, the date of entry into District Board service
not the service under the Panchayat, was regarded as
relevant for purposes of reckoning seniority. The next
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operation i.e. District Board staff, teaching and non-
teaching being
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sewn into Government service is what now falls for
consideration by the court. A few skeletal facts to unfold
the basic legal contentions alone need be recounted.
All District Board Schools were taken over with effect
from 1-4-70 and, inevitably, the issue of merger of the
staff confronted Government.
At the time of issuance of G.O. No. 761 dated 16th May
1970, which organised the absorption of the teaching and
non-teaching staff into Government services from the
District Board service, Government decided to keep the
personnel so absorbed as a separate service in the
Educational Department named the Tamil Nadu Educational
Subordinate Service. The ministerial service, which related
to the non-teaching staff, also was kept separate. Of
course, all schools to be opened after 1-4-70 were to be
Government Schools and so the dichotomy between and staff of
erstwhile District Board Schools and of Government Schools
no longer persisted. The direct consequence of this
immiscible maintenance of the two separate services was that
the promotional prospects then available for Government
employees were not open to the former District Board
servants on their re-incarnation as Government servants.
This, naturally, gave rise to heart-burning and its
manifestation in a democratic set-up, agitation,
representation and interpellations in the Legislature.
The next development in the fortunes of the former
District Board Schools’ employees came when G.O. No. 1786 of
October 17, 1974 was issued. Here Government recapitulated
the position after 1-4-70 and considered afresh the question
of integration of the two services, the Government Schools’
servants being called the ’A’ Wing and the staff of the
former District Board Schools being referred to as ’B’ Wing.
In the considered view of the Government, complete
integration of ’A’ and ’B’ Wings was administratively
difficult and so they were kept separate as two wings of the
Tamil Nadu Educational Sub-ordinate Service and the Tamil
Nadu Educational Service. Certain amelioratory measures were
taken in opening up better prospects and avenues of
promotion for the new arrivals from the District Board
Schools. Presumably, this half-way house arrangement was
hardly a sufficient appeasement, and Government was again
agitated over the question. The pressure of social justice
brought to bear on Government through many channels
including the houses of the legislature, persuaded the State
to overhaul the entire pattern of integration and
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fitment of the two wings in a common seniority list.
Government ratiocinated on the question thus:
"Ever since taking over the ’B’ wing personnel as
full fledged Government servants from 1-4-70 it was
being repeatedly represented to Government that it
would not be equitable to deny them for ever the
advantages available to their counterparts in the ’A’
Wing when persons of both the wings are doing identical
work and that the Government should consider merging
both the wings on some rational basis. In both the
Houses of the State Legislature also many honourable
members have been repeatedly urging the Government to
take quick and pragmatic decision on this long pending
issue. After examining the matter in great detail
taking into account the number of personnel of
different categories in both the wings and the
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promotional opportunities for them, the Government have
proposed to adopt a formula to integrate the two wings
and attempt to equalise their service conditions to the
extent possible. The Tamil Nadu Public Service
Commission has given its consent to these proposals.
The Government accordingly now direct, in partial
modification of the orders in the G.O. Ms. referred to
above, that the staff of ’A’ and ’B’ Wings be
integrated with immediate effect following the
procedure indicated below:"
(emphasis added)
Then followed two important decisions setting the kismat of
the two Wings at the teaching and the non-teaching staff
levels. These decisions are castigated in the writ petitions
as capricious, arbitrary and traumatic by the ’A’ Wing, i.e.
the teaching and non-teaching staff of the Government
Schools. These two decisions are, briefly, (1) fixing the
ratio between the two wings in the matter of promotion, and
(2) fixing the principle for computation of service in
determining common seniority. We are concerned only with
non-gazetted officers of secondary schools in these writ
petitions. With regard to them, different proportions for
promotional consideration have been fixed in this G.O. No.
1968. The ratio of 5:3 and 3:2 respectively were prescribed
for the ministerial staff and teaching staff, taking
realistic note of the total numbers in the two equivalent
groups viz. quondom District Board servants and relative
Government School staff. This is not an irrational criterion
when coalescence of two streams springing from two sources
occurs.
1031
In Service Jurisprudence integration is a complicated
administrative problem where, in doing broad justice to
many, some bruise to a few cannot be ruled out. Some play in
the joints, even some wobbing, must be left to Government
without fussy forensic monitoring, since the administration
has been entrusted by the Constitution to the Executive, not
to the Court. All life, including administrative life,
involves experiment, trial and error, but within the leading
strings of fundamental rights, and, absent unconstitutional
’excesses’, judicial correction is not right. Under Art. 32,
this Court is the constitutional sentinel, not the national
ombudsman. We need an ombudsman but the court cannot make-
do.
The feeble criticism that the promotional proportion
between the two wings, in the process of interlacing and
integration, is unsupported by any rational guideline is
pointless. The State’s case is that when two sources merge
it is not uncommon to resort to the quota rule for
promotion, although after getting into the common pool
further ’apartheid’ shall be interdicted save in a limited
class with which we are not concerned here. Of course, even
if the quota rule is an administrative device to inject
justice into the integrating process, the ratio cannot be
arbitrary nor based on extraneous factors. None such is
averred nor established. The onus is on the challenger and,
here, the ratio is moderately related to the numbers on both
sides and we see nothing going ’berserk’, nothing bizarre,
nothing which makes you rub your eyes to query what strange
thing is this Government doing? Counsel for the respondents
explain that when equated groups from different sources are
brought together quota-rota expedients are practical devices
familiar in the field. Bearing in mind the strength of the
District Board staff to be inducted, the ratio is rational.
Maybe, a better formula could be evolved, but the court
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cannot substitute its wisdom for Government’s save to see
that unreasonable perversity, mala fide manipulation,
indefensible arbitrariness and like infirmities do not
defile the equation for integration. We decline to demolish
the order on this ground. Curial therapeutics can heal only
the pathology of unconstitutionality, not every injury.
The more serious charge is that length of service for
fixing seniority has inflicted manifest injustice on the ’A’
Wing i.e. regular Government staff, being born in
arbitrariness and fed on mala fides. It is fair to state the
generalities and then proceed to particularities. Here we
must realise that all the schools having been taken over by
the State directly the personnel had to be woven into the
basic fabric. Some
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relevant formula had to be furnished for this purpose so
that the homogenisation did not unfairly injure one group or
the other. In 1970 Government chose not to integrate but to
keep apart. Later, this policy was given up. We cannot, as
court, quarrel if administrative policy is revised. The
wisdom of yesterday may obsolesce into the folly of today,
even as the science of old may sour into the superstition
now, and vice versa. Nor can we predicate mala fides or
ulterior motive merely because Assembly interpellations have
ignited re-thinking or, as hinted by Counsel, that the
Education Minister’s sensitivity is due to his having been
once District Board teacher. Democratic processes-both these
are part of such process-are not anathema to judges and we
cannot knock down the order because Government have
responded to the Question Hour or re-examined the decision
at the instance of a sensitive minister.
The central issue is whether the engraftment of the
long service under the District Board in favour of the
transplanted staff, rational or capricious, equity-oriented
or obnoxious. The impugned G.O. No. 1968 which is the
cynosure of attack in these two writ petitions sets out the
background history, current realities and the need to throw
open promotional opportunities to the District Board sources
stunted for long since 1970. There is reference to
consultation with and consent of the Public Service
Commission which is usually the expert body on service
matters. The experience of 8 years is available with the
Government at the time it promulgated this G.O. It
enunciates a policy of integration of ’A’ and ’B’ Wings with
immediate effect and outlines the basis on which such fusion
is to be achieved. A State-wise seniority list is decided
upon, a desideratum which is inescapable if integration is
to be accomplished.
Government decisions are recorded in this impugned G.O.
regarding the manner of filling existing substantive
vacancies and promotion posts with respect to teaching
posts. Of course, correspondingly similar decisions were
taken for filling up vacancies by promotion to non-teaching
posts. 2:3 in a cycle of 5 in regard to teaching posts and
5:3 in a cycle of 8 in regard to non-teaching posts is the
quota-rota decision of Government after appraising itself of
the current lot of the ’transplants’, the missed past
opportunities and the burgeoning future promotions.
There is a direction that a combined State-wide
seniority list shall be prepared in accordance with the
ratios mentioned and all promotions thereafter were to be
made out of such combined lists. Some ameliorative provision
regarding passing of tests necessary for promotion has been
made in regard to those who have crossed the 45 years
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age mark. This last limb was relied on by Sri Swaminathan to
suggest that there was no total integration between the two
services. But we do not read any decisive indication of such
a conclusion from this feeble circumstance. The crux of the
matter is what is implicit but not explicit in the order,
that in the process of integration and drawing up of
combined seniority lists the services of the quondom
District Board employees vis-a-vis the Government School
employees District Board service has been reckoned. Can this
be done by a prudent person or is it outrageous to equate
District Board service with Government service ? That is the
question an answer to which disposes of these writ
petitions.
We need not delve into details because, in the area of
equation, an overall view, and not a meticulous dissection,
matters. The petitioners have argued that the selection of
Government servants as teachers or non-teachers is done by
the Public Service Commission, which means screening and
processing by experts. On the other hand, District Board
employees are appointed on the chance choice of Presidents
pro tempore. The obvious suggestion is that the professional
equipment in the two cases is substantially different. Even
on qualifications it is contended that there is superiority
for Government servants vis-a-vis District Board employees
in schools. A few other less consequential circumstances of
difference are relied on in the writ petitions. On the
contrary, the plea of the respondents is that there is
substantial similarity in the quality of service and absence
of disparity in the selection process: "Like the Service
Commission, the District Board also selected the candidates.
As already submitted, the language test prescribed for the
’A’ Wing people is not a peculiar feature for them. The
narration of the prescribed test and the syllabus therefore
for the ’B’ Wing people would definitely show that ’B’ Wing
people had to face onerous nature of examinations. As
regards the educational qualifications for the teachers are
concerned, there are absolutely no differences. In A-Wing
even without a degree in teachers training, a candidate can
be appointed and subsequently he can qualify in B.Ed. But
whereas for the B Wing teachers, the rules, framed under the
District Board Act stipulates that for the post of School
Assistant in a Secondary School, a candidate must possess
the qualifications laid down under the Madras Educational
Rules (the rule relating to the appointment of Teachers in
schools maintained by local bodies). Under the Madras
Educational Rules one must possess a degree in B.A. or
B.Sc., with B.T. or B.Ed., as in the case of ministerial
service, the teachers also have to undergo a period of
probation for a period of 2 years. Only after the
satisfactory completion of probation for a period of 2
years, they were regularised. Their
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increment is sanctioned only after such regularisation. In
’B’ Wing schools a Headmaster or Headmistress must pass the
following tests. If a candidate who has been promoted as a
Headmaster or Head-mistress fails in this subject, he or she
will have to face reversion."
The students who are coached for examinations, the
syllabus for such courses and the nature of the teaching are
virtually identical in the two sets of schools and the
qualifications of the teachers also resemble. In this
background, the State probably assumed as inadmissible of
contrary argument that the quality of the service, the
nature of the qualifications for employment and other
features were de facto identical and consequentially service
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in District Board Schools and service in Government Schools
could be legitimately equated for purposes of reckoning
seniority. In this imperfect world mathematical precision in
equation is a vain chase.
Decisions were cited before us by counsel for the
respondents to show that this was not an exercise in novelty
and even private college experience has been considered
relevant when Government has taken over such colleges. On
the contrary, counsel for the petitioners pressed before us
that when Panchayat schools were dovetailed into the
Education Department of the District Boards the teachers and
the non-teaching staff thereunder were given no credit for
panchayat service and seniority was reckoned only from the
date of entry into District Board service. Why should a
different rule be adopted when District Board teachers and
non-teaching staff are brought into Government service ?
Even the ’Fundamental Rules’ were cited to show that
ordinarily service prior to entry into Government service is
discarded. Then why violate this norm to please the numbers
? This is the question put to Government for faulting the
G.O. No. 1968.
Aware of our jurisdictional limitation we do not agree
that the court can analyse such minutiae to fault the policy
and quash the order of Government, i.e. G.O. No. 1968. For
argument’s sake, let us assume that there is a volte face on
the part of the Government in shifting its stand in the
matter of computation of seniority with reference to length
of service. Surely, policy is not static but is dynamic and
what weighed with the Government when panchayat institutions
were amalgamated with the District Board institutions might
have have given up in the light of experience or changed
circumstances. What was regarded as administratively
impractical might, on later thought and activist
reconsideration, turn out to be feasible and fair. The court
cannot strike down a G.O., or a policy merely because there
is a variation or contradiction. Life is sometimes a
contradiction and even
1035
consistency is not always a virtue. What is important is to
know whether mada fides vitiates or irrational and
extraneous factor fouls. It is impossible to maintain that
the length of service as District Board employees is
irrational as a criterion. Let us assume for argument’s sake
that the mode of selection by the District Boards is not as
good as by the Public Service Commission. Even so it is
difficult to dislodge the Government’s position that the
teachers with mostly the same qualifications, discharging
similar functions and training similar students for similar
examinations cannot be equated from a pragmatic angle
without being condemned as guilty of arbitrariness.
Sri Govind Swaminathan drove home the point that in
some cases even a few hundred ’A’ wing members have been
passed over by some one in the ’B’ wing far junior to them.
Once the principle is found to be rational the fact that a
few freak instances of hardship may arise on either side
cannot be a ground to invalidate the order or the policy.
Every cause claims a martyr and however unhappy we be to see
the seniors of yesterday becoming the juniors of today, this
is an area where, absent arbitrariness and irrationality,
the court has to adopt a hands-off policy.
The ’B’ wing members complain that they have really
suffered by being denied what is due to them on account of
length of service all these years after 1970. The boot is in
the other leg, they lament. Probably, the injustice of the
past, when suddenly set right by the equity of the present,
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puts on a molested mien and the beneficiaries of the
statutes quo cry for help against injustice to them. The
law, as an instrument of social justice, takes a longer look
to neutralise the sins of history. Be that as it may,
judicial power cannot rush in where even administrative
feats fear to tread.
We see the force of the petitioners grievance and
realise that an alternative policy may well be fabricated.
That is matter for the State and not for the court.
We hold that the impugned G.O. cannot be voided as
violative of Articles 14 and 16, and, therefore, dismiss the
petitions. The parties will bear their respective costs.
N.V.K. Petitions dismissed.
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