Full Judgment Text
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PETITIONER:
DIRECTOR GENERAL GEOLOGICAL SURVEY OF INDIAAND ORS.
Vs.
RESPONDENT:
GEOLOGICAL SURVEY OF INDIA EMPLOYEESASSOCIATION.
DATE OF JUDGMENT11/07/1991
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
YOGESHWAR DAYAL (J)
CITATION:
1991 SCR (2) 893 1991 SCC Supl. (2) 89
JT 1991 (3) 98 1991 SCALE (2)39
ACT:
Civil Service-Exploration Wing of the Indian Bureau of
Mines and Geological Survey of India-Merger-Whether with
effect from 1.1.1966 of from 4/6.2.1969-Provisional
seniority list and statement of introduction to the
compilation-Whether constitute proof of merger.
HEADNOTE:
In Civil Appeal No. 855(N) of 1979 and Civil Appeal No.
2665 of 1991 the issue raised was common and relating to the
date of merger of the two departments of the Government of
India, in the field of mines and minerals, namely (i)
Exploration Wing of the Indian Bureau of Mines (IBM) and
(ii) Geological Survey of India (GSI).
Between 1.1.1966 to 4.2.1969 thirty nine Lower Division
Clerks belonging to GSI were promoted as Upper Division
Clerks against the vacancies that arose in the GSI. They
were juniors to their counterparts in the IBM. Being
aggrieved by the said promotions, the respondents who
originally belonged to the IBM, preferred Special Civil
Application in the Bombay High Court for setting aside the
seniority list and for a direction to consider their cases
of promotion with effect from 1 January, 1966 and not from 4
February 1969 and therefore, there cannot be two separate
channels of promotions from 1 January 1966- one from the
employees of the Exploration Wing of IBM and another for the
employees of GSI.
The appellants contended that the Officers of GSI were
promoted on the ground that the actual merger took place not
on 1 January 1966 but on 4 February 1969.
The High Court allowed the petition against which Civil
Appeal No. 855(N) of 1979 has been preferred.
A Senior Technological Assistant (Geology) of the
erstwhile IBM moved the Karnataka High Court for similar
relief contending inter
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alia that this case ought to have been considered for
promotion in the merger cadre with effect from 1 January
1966. The Karnataka High Court also allowed his claim with a
direction to consider him for promotion with effect from
1 January 1966 in the merged cadre. That decision was not
implemented by the GSI. In the contempt proceedings taken
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for disobedience of the judgment, the High Court allowed six
weeks time for compliance, against which, SLP(C) No. 4906 of
1991 has been preferred.
Respondents relying on the letters dated 10 December
1965 and 29 November 1966 contended in support of the
decision of the High Courts that the merger took place on 1
January 1966, whereas the appellants took assistance from
terms of the letter dated 4/6 February 1969 in support of
the counter plea.
Allowing the appeals, this Court,
HELD: 1. The statements in the letter make it abundantly
clear that it was only administrative control of the
relevant wings of IBM that were transfered to GSI with
effect from 1 January 1966. The letter does not refer to the
decision of merger of the two departments. [902E]
2. The decision taken on the merger of the posts was
communicated by subsequent letters dated 28 June 1967 and
4/6 February 1969. By letter dated 28th June 1967 the
Government communicated the sanction of merger of class I
JUDGMENT:
IBM and GSI (Proper) with immediate effect. The letter also
contains certain instructions to department about service
conditions and seniority of persons in the amalgamated
cadres of class I & II posts. The decision with regard to
merger in respect of other categories of posts which include
are concerned in these cases is contained in the letter
dated 4/6 February 1969. [902F-G]
3. The letter dated 4/6 February 1969 further provides
the inter-se seniority of the incumbent in the merged
cadres will be governed in accordance with the principles
laid down in the earlier letter dated 28th June 1967. The
merger/revision of the scales of pay does not involve any
change in the nature of duties of the respective posts. The
Officers concerned in the merged cadre will be given options
in writing for opting the new scales of pay in the merged.
In case an individual concerned fails to exercise the option
within the time limit, he will be treated to have accepted
the new scale of pay. It will be apparent from the terms of
the letter dated 4/6 February 1969 that the posts
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referred to in the letter were merged with GSI with effect
from 4 February 1969 would be unnecessary and uncalled for.
[903A-C]
4. Provisional seniority list and the statement of
introduction to the compilation are no evidence of the date
of merger do not reflect the decision of the Govt. of India.
[905E]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 855 (n)
of 1979.
From the Judgment and Order dated 22nd October, 1975 of
the Bombay High Court in Special Civil Application No. 985
of 1969.
WITH
Civil Appeal No. 2665 of 1991.
M. Chander Sekhar, Additional Solicitor General (NP), A.
Subba Rao and C.V. Subba Rao for the Appellants.
R.K. Garg, R.P. Singh, Rakesh Khanna, P.C. Kapur and Raj
Kumar Gupta for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. In the field of mines and
minerals, the Government of India has two departments, (i)
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Exploration Wing of the Indian Bureau of Mines (IBM) and
(ii) Geological Survey of India (GSI). The GSI is
responsible for geological mapping and exploratory drilling
calculated to delineate mineralised zones in the country.
The IBM conducts detailed probing operations in selected
blocks of mineralised areas. The functions of these two
departments were found to be overlapping. The Government of
India, therefore, decided to merge the Exploratory Wing of
IBM with the GSI to eliminate overlapping works and
rationalise the functions of the two departments. To
accomplish this purpose, different cadres of the Exploration
Wing of IBM were merged with the GSI from different dates.
There is no dispute that the posts concerned in these cases
also came to be merged with the GSI. The question, however,
for consideration is about the date of that merger: whether
it was from 1 January, 1966 or from any subsequent date. The
Government of India contends that the merger took place on
4/6 February 1969 while the contesting respondents claim
that it was with effect from 1 January 1966.
The dispute as to the date of merger has arisen because
of the
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following circumstances. That between the period from 1
January 1966 to 4 February 1969, thirty nine persons in the
cadre of Lower Division Clerks belonging to GSI were
promoted as Upper Division Clerks against the vacancies that
arose in the GSI. They were apparently juniors to their
counterparts in the IBM. Being aggrieved by the said
promotions, the Association of the Officers who originally
belonged to the IBM preferred Special Civil Application No.
985/69 at Nagpur Bench of the Bombay of the Bombay High
Court for setting aside the seniority list and for a
direction to consider their cases of promotion with effect
from 1 January 1966. It was contended before the High Court
that the merger of the two departments took place with
effect from 1 January 1966 and not from 4 February 1969 and
therefore, there cannot be two separate channels of
promotions from 1 January 1966-one for the employees of the
Exploration Wing of IBM and another for the employees of
GSI. The Government of India sought to justify the
promotions exclusively given to the Officers of GSI between
the period from 1 January 1966 to 4 February 1969 on the
ground that the actual merger took place not on 1 January
1966 but on 4 February 1969. the High Court, however, did
not accept the submission of the Government of India. The
High Court summarised its conclusion thus:
‘‘It is also to be noted that after 1.1.1966 the
petitions did not get any promotion or were not
considered for promotion by the Indian Bureau of
Mines because they were treated under the
administrative control of Geological Survey of
India. If the contention of the respondents is
accepted then it will have to be held that for
three years the cases of the petitioners cannot be
considered by the Geological Survey of India and
they were not considered by the Indian Bureau of
Mines because they were not under the
administrative control of Indian Bureau of Mines.
This will result into absurdity and, therefore,
such a contention cannot be accepted. We are,
therefore, inclined to hold on consideration of the
annexures produced along with this petition that
the merger in the two wings has taken place on
1.1.1966. Therefore, the seniority of Upper
Division Clerks will have to be considered and made
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in this light after taking into consideration the
fact that the petitioners merged and became the
part of Geological Survey of India on 1.1.1966 and,
therefore, for the purpose of counting their
seniority, their past service rendered with the
Indian Bureau of Mines will have to be treated as
service rendered with the Geological Survey of
India. This
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is the correct effect of the letter R-2 relied
upon by the respondents. We, therefore, direct the
respondent Nos. 1, 2, & 4 to prepare a fresh
seniority list in the light of the observations
made above as if the merger has taken place on
1.1.1966 and after determining inter seniority give
an appropriate relief to the petitioners.’’
Civil Appeal No. 855(N) of 1979 has been preferred
against the above decision of the Bombay High Court.
A Senior Technological Assitant (Geology) of the
erstwhile IBM moved the Karnataka High Court for similar
relief contending inter-alia that his case ought to have
been considered for promotion in the merged cadre with
effect from 1 January 1966. The Karnataka High Court also
allowed his claim with a direction to consider him for
promotion with effect from 1 January 196 in the merged
cadre. That decision was not implemented by the GSI, perhaps
on the ground that the dispute as to the date of merger is
already pending consideration before this Court. In the
contempt proceedings taken for disobedience of the judgment,
the High Court however, did not accept that excuse put
forward by the GSI and Government of India, but allowed six
weeks time for compliance. SLP(C) No. 4906 of 1991 has been
preferred against that direction issued by the Karnataka
High Court. Since the issue raised in both the matters is
common, we grant special leave in this case also.
The issue as to the date of merger of the Exploration
Wing IBM with GSI turns on the contents of some of the
letters written by the Government of India to the Director
General of GSI. Both the parties depend upon the same
letters but with different contentions and constructions. We
will now draw attention to the letters one by one.
(i) ‘‘LETTER DATED 10 DECEMBER 1965 GOVERNMENT OF
INDIA MINISTRY OF STEEL AND MINES, DEPARTMENT OF
MINES AND METALS.
To
The Director,
Indian Bureau of Mines,
Nagpur.
(For the attention of Sh. K.N. Murthy,
Deputy Director, IBM)
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Sub: Reorganisation of the IBM and GSI.
Sir,
xxxxx xxxxx xxxxx
After careful consideration of all these
matters and in consultation with Director General,
GSI and IBM, the Government have decided to
transfer the following from the IBM to the
administrative control of the GSI w.e.f. 1st
January 1966:
(i) All the posts and personnel in the Prospecting
Drilling and Mining Divisions of the Bureau will be
transferred to the GSI as detailed in Appendices I
& II.
(ii) The workshop and Mineral Technology and
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Physical Analysis Laboratories will transferred to
the GSI along with the posts in these laboratories
as detailed in Appendix II.
(iii) The posts in the common cadres in the
Administration and Accounting Divisions as have
been on the basis of actual work load as detailed
in Appendix II. The personnel holding the posts
will be allocated to the GSI and the IBM on the
basis of options indicated by them, the principal
guideline being exigency of public service.
(iv) The equipment, vehicles and stores, will be
transferred by the IBM to the GSI according to the
distribution made on the basis of equipment etc.
being required by the organisations as per
statement in Appendix III.
2. The headquarters of the Prospecting, Drilling
and Mining Divisions, as also the workshop and the
Mineral Technology and Physical Analysis
Laboratories, which are being transferred from the
Bureau to the GSI, will continue to be at Nagpur.
On transfer of these Divisions, these will work as
separate entity of the GSI under the administrative
control of the DG, GSI. Headquarters of the Mineral
Technology Laboratory at Delhi will continue to
remain at Delhi.
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3. The service conditions of the personnel to be
transferred to the GSI such as status, emoluments,
seniority etc. will be governed by the existing
recruitment rules until further orders.
4. The IBM will be responsible for the
administration of Mines (Control and conservation)
collection of statistical data of minerals and Ore
Dressing Laboratory as here to before.
5. With effect from 1.1.1966 the GSI will provide
in their budget the expenditure connected with the
work transferred to them from the IBM and put up a
Supplementary
demand. Correspondingly IBM will surrender the
L(equivalent) amount from its budget.’’
(ii) LETTER DATED 28 JUNE 1967 GOVERNMENT OF INDIA
MINISTRY OF STEEL MINES & METALS, DEPARTMENT OF
MINES AND METALS.
To
The Director General,
Geological Survey of India,
27, Chowringhee Road,
Calcutta-13
Sub: Merger of Class I and II posts in the Drilling
Divisions of the Geological Survey of India (Proper
and Exploration Wing) and combined seniority lists.
Sir,
In partial modification of the Ministry of
Steel and Mines (Department of Mines & Metals)
letter No. 20/4/65-MIII dated 10 December 1965, I
am convey sanction of the Government to merge class
I and II posts in the Drilling Divisions of the
Exploration Wing and the Geological Survey of
India (Proper) with immediate effect. Heretofore,
the service conditions of the class I and II
officers of Drilling category of the merged
Drilling Division would be governed in accordance
with the revised recruitment rules which are under
issue separately.
900
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2. In drawing up the combined seniority lists of
the officers in different grades in the amalgamated
cadres of Class I and II posts para 3 of the
annexure to the Ministry of Home Affairs O.M. No.
9/11/55-RPS dt. 22.12.1958 according to which
permanent officers of the grade are senior to
temporary officiating officers of that grade, is
not applicable. In such cases, seniority is
determined with reference to the date of
continuous appointment to that grade on a regular
basis in accordance with the other principles
prescribed in the Ministry of Home Affairs O.M. No.
dt. 23.12.1959 referred to above lists so drawn may
please be sent for approval of Government.
Yours faithfully,
Sd/-
(A. Sethumadhavan)
Under Secretary to the Govt. of India
(iii) LETTER DATED 4/6 FEBRUARY GOVERNMENT OF INDIA
MINISTRY OF STEEL, MINES AND METALS (DEPARTMENT OF
MINES AND METALS)
No. 1/16/68-MIII
To
The Director General,
Geological Survey of India,
Calcutta.
Sub: Merger of Posts/scales of pay in the GSI
(Proper) and the Exploration Wing transferred from
the Indian Bureau of Mines to the Geological Survey
of India.
Sir,
I am directed to invite your attention to
this Ministry’s letter No. 3/17/67-MIII, dated
28.6.1967 and to say that the President is pleaded
to sanction merger of the posts and to prescribe
the scales of pay for the merged cadres as shown in
the enclosed statement with immediate effect.
Orders regarding merger of the remaining posts will
be issued separately.
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2. The inter-seniority of the incumbents in the
merged cadres will governed in accordance with the
principles laid down in para 2 of the Ministry’s
letter referred to above.
3. The merger/revision of the scales of pay does
not involve any change in the nature and duties of
the respective posts. The fixation of pay in the
revised scales of pay may be done under FR-23, read
with audit instruction 1 under FR-22.
4. The officers concerned should be asked to
exercise their option in writing so as to reach the
authority concerned within four months of the issue
of this letter, provided that:
(i) in the case of a Government servant who is
on that date out of India on leave, deputation or
foreign service or active service, the said option
shall be exercised in writing so as to reach the
prescribed authority within four months of the date
of his taking over charge of his post in the GSI
and
(ii) Where a Government servant is under
suspension the option may be exercised by him
within four months of the date of his return to
duty, if that date is later than the date
prescribed here.
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In case the individual concerned fails to exercise the
option within the time limit, he will be treated to have
accepted the new scale of pay.’’
In between these correspondence, the Government of India
wrote one more letter to the Director General of GSI. It was
dated 29 November, 1966 which will be referred later.
Mr. Garg and Mr. Vaidyanathan, counsel for the
contesting respondents rely on the first letter dated 10
December 1965 and also on the subsequent letter dated 29
November 1966 in support of the decision of the High Courts
that the merger took place on 1 January 1966. Mr. Subba Rao,
counsel for the Union of India wants to take assistance from
the terms of the letter dated 1/6 February 1969 in support
of the counter plea. It may be significant to note that the
letter dated 10 December 1965 does not indicate the date of
merger. It is
902
stated therein that after consultation with the Director
General of GSI and IBM, the Government has decided to
transfer to the administrative control of GSI with effect
from 1 January 1966 the posts and personnel in the
prospecting drilling and mining divisions of the Bureau
with the workshop, mineral technology and physical analysis
laboratories. The letter further states that the posts in
the common cadres in the administration and accounting
divisions as have been divided on the basis of actual work
load (as detailed in Appendix II) with the personnel holding
the post will be allocated to GSI and IBM on the basis of
options indicated by them. The equipment, vehicles and
stores will be transferred by IBM to GSI according to the
distribution made as per requirements of the two
organisations. The most important statements in the letter
are these: (i) on transfer of the divisions they will
however work as separate entity of the GSI under the
administrative control of the Director General, GSI and (ii)
the service conditions of the personnel to be transferred to
GSI such status, emoluments, seniority etc. will be governed
by the existing recruitment rules until further orders. It
is further directed in the letter that with effect from
January 1966, the GSI will provide in their budget the
expenditure connected with the work transferred to them from
the IBM and put up a supplementary demand. Correspondingly,
IBM will surrender the (equivalent) amount from the budget.
These statements in the letter make it abundantly clear that
it was only administrative control of the relevant Wings of
IBM that were transferred to GSI with effect from 1 January
1966. The letter does not refer to the decision of merger of
the two departments.
The decision taken on the merger of the posts as rightly
submitted by Mr. Subba Rao was communicated by subsequent
letters dated 28 June 1967 and 4/6 February 1969. By letter
dated 28 June 1967 the Government communicated the sanction
of merger of class I & II posts in the drilling divisions
of Exploration Wing of IBM and GSI (Proper) with immediate
effect. The letter also contains certain instructions to
department about service conditions and seniority of persons
in the amalgamated cadres of class I & II posts. The
decision with regard to merger in respect of other
categories of posts is contained in the letter dated 4/6
February 1969. Thereunder it is expressly stated that ‘‘the
President is pleased to sanction merger of the posts and to
prescribe the scales of pay for the merged cadres as shown
in the enclosed statement accompanying the letter include
the posts with which we are concerned in these cases and
there is no dispute on this matter.
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903
The letter dated 4/6 February 1969 further provides that
the inter-se seniority of the incumbents in the merged
cadres will be governed in accordance with the principles
laid down in the earlier letter dated 28 June 1967. The
merger/revision of the scales of pay does not involve any
change in the nature of duties of the respective posts. The
officers concerned in the merged cadre will be given
options in writing for opting the new scales of pay in the
merged cadre. In case an individual concerned fails to
exercise the option within the time limit, he will be
treated to have accepted the new scale of pay. It will be
apparent from the terms of the letter dated 4/6 February
1969 that the posts referred to in the letter were merged
with GSI with effect from 4 February 1966, as contended for
the respondents, the letter dated 4/6 February 1969 would be
unnecessary and uncalled for.
Counsel for the respondents however, placed strong
reliance in support of the counter point on the letter dated
29 November 1966 which reads as follows:
GOVERNMENT OF INDIA
No. 8/39/66-MIII NEW DELHI 29TH NOV. 1966
To
The Director General,
Geological Survey of India,
27, Chowringhee Lane,
Calcutta 13
Sub:- Absorption of Shri B.K. Chatterjee,
Stenographer (Selection Grade) of the Indian Bureau
of Mines, in Geological Survey of India
(Exploration Wing).
Sir,
I am directed to refer to your letter No.
832/8 (N)/115/65/15 dated 4.11.1966 on the subject
mentioned and to say that transfer in question
cannot be termed as transfer from one department to
the other department, since it place on a result of
the reorganisation of the Indian Bureau of Mines
and transfer was effected on the recommenda-
904
tions of the Merger Committee when there was a
vacancy in the GSI. The transfer was made in the
public interest and it is considered not necessary
to approve the transfer in question in relaxation
of the recruitment Rules as proposed. The transfer
of Shri Chatterjee may be treated as in order.
Further, the inter-seniority of Stenographer
and other categories of posts transferred from the
Bureau to the Geological Survey of India as a
result of the reorganisation of the former may be
decided taking into account the fact that such
transfers have been made in the public interest and
such cases may be examined on the basis as if the
individual concerned were originally appointed in
the Geological Survey of India.
Yours faithfully,
Sd/-
(A. Sethumadhavan)
Under Secy. to the Govt. of India
We do not find any support from this letter to the
submission of the respondents. The letter concerns with the
transfer of one Stenographer called Shri B.K. Chatterjee
from IBM to the GSI. The transfer was made in the public
interest. Consequently. it was held that the person
transferred was entitled to seniority as if he were
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originally appointed in the GSI. That is a normal incident
of transfer from one department to another and there is
nothing strange in it. But it may be noted that the
respondents were not transferred from IBM to GSI with effect
from 1 January 1966. They were neither transferred to GSI,
nor their posts were transferred to GSI with effect from 1
January 1966. They were only brought under the
administrative control of the Director General of GSI. The
result is that the posts and personnel remained in their
own department and they would continue to be governed by
their own service conditions. This would indeed be the
consequence of one department being brought under the
control or supervision of another departmental head. This
point has also been made clear in the letter dated 1 January
1966 in which it has been provided ‘‘that the service
conditions of the personnel to be transferred to the GSI
such as status, emoluments, seniority etc. will be governed
by the existing recruitment rules until further orders’’.
In other words, the service conditions which the respondents
were entitled to, in their parent department would continue
to be available to them until further orders.
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The Bombay High Court has however, observed that it will
lead to absurdity if the contesting respondents are not
considered for promotion in the GSI from 1 January 1966
since they could not get any promotion in or were not
considered for promotion by IBM because they were treated
under administrative control of GSI. It is difficult to
accept this view. This conclusion is based more on equitable
consideration than on law. It is the result of failure to
focus on the difference between the terms of letters dated
1 January 1966 and 4/6 February 1969. It may be emphasised
that non-consideration of the contesting respondents for
promotion in the IBM during the period from 1966 to 1969
even assuming it to be true is however no ground for them to
seek promotion in GSI. They must seek their promotion during
the interregnum only in their parent department.
Reference is made to the combined provisional seniority
list of persons in class III cadres of IBM and GSI prepared
as on 1 December 1968. It is submitted that if the merger
took place with effect from 4 February 1969 there were no
necessity for GSI to prepare the provisional seniority list
of officers of the combined cadre as on 1 December 1968.
Reference is also made to the ‘‘Introduction to the
compilation Vol. 100 Part I, Records of the GSI’’, in which
it is mentioned that on 1 January 1966, the Mining Divisions
of the IBM have been merged with the GSI. The said
provisional seniority list and the statement of introduction
to the compilation, in our opinion, are no evidence of the
date of merger and indeed, they do not reflect the decision
of the Government of India which we have earlier discussed.
For the foregoing reasons, we accept the appeals and
set aside the impugned judgment and order.
In the circumstances of the case, however, there should
not be any order as to costs.
V.P.R. Appeals allowed.
906