S.S Nijjar, J.— Leave granted in all the special leave petitions. These appeals are directed against the common judgment and final order dated 23-7-2010 passed by the High Court of Judicature of Madras in S. Sivaguru v. State of T.N (2010) 6 MLJ 468 By this order, the High Court dismissed Writ Petitions Nos. 23893 of 2006 and 34401 of 2007 and allowed Writ Petition No. 17578 of 2008 filed by Respondents 3 to 5 and also Writ Appeal No. 312 of 2008.
2. Since the facts involved in the controversy in all the appeals are common, we shall make a reference to the facts as narrated by the High Court. This shall be supplemented by any additions made by the appellants in this Court.
3. The facts noticed by the High Court are that initially the Health Department consisted of Multipurpose Health Workers and Unipurpose Health Workers who were engaged in various schemes for eradication of different diseases which were widespread throughout India. By an order dated 29-9-1982, Unipurpose Workers were integrated as Multipurpose Health Workers. On 4-11-1988, there was a subsequent integration of employees engaged in the family welfare. Soon thereafter, statutory rules were notified under the proviso to Article 309 by GOMs No. 1507 dated 16-8-1989 (the T.N Health Workers Rules, 1989) which were made applicable to the Multipurpose Health Workers Scheme. Under the rules, different Class I and Class II posts were notified and their essential qualifications were prescribed.
4. The essential qualification for appointment to the post of Multipurpose Health Assistant was SSLC and long-term Multipurpose Health Worker's Training Course Certificate or possession of Sanitary Inspector's Course Certificate and short-term training course certificate from multipurpose health workers training. It was further provided that the candidates will have to acquire the long-term training course certificate within five years from the date of appointment. The essential qualifications were also prescribed for all other posts. By an amendment dated 19-11-1990 (G.O No. 1984), the pay scales of Multipurpose Health Assistant were re-fixed. On 13-8-1991, the Health and Family Welfare Department by G.O No. 1123 prescribed the qualifications for promotions of Multipurpose Health Supervisors as Block Health Supervisors. Vide GOMs No. 4 dated 4-1-1993 some of the categories were added in the feeder posts of Multipurpose Health Supervisor and Multipurpose Health Workers. These rules were, however, applicable only to those who joined the service under the Tamil Nadu Public Health Services.
5. Again the Health and Family Welfare Department, through G.O No. 593 dated 11-9-1995, categorised Multipurpose Health Supervisors and Multipurpose Health Assistants as Health Inspectors Grade I and Grade II. The G.O further provided that all Multipurpose Health Assistants were to be promoted as Multipurpose Health Supervisors provided they had served on the post for 20 years and had crossed the age of 50 years. This relaxation was given as a one-time measure by upgradation of the post. It is pertinent to mention here that the Multipurpose Health Assistants promoted under this G.O included the Unipurpose Health Workers who had been absorbed pursuant to the integration in 1982. The aforesaid G.O No. 593 was challenged by certain aggrieved persons in Writ Petitions Nos. 17550 and 25608 of 2006. Prior to this, the Rules were amended on 20-12-1995 w.e.f 6-9-1989 by G.O No. 782. It was, however, made clear that the amendment shall not adversely affect those who were holding the post prior to 16-8-1989.
6. The inter se dispute between the parties in the present appeals originated when the fact of successful eradication of leprosy by the National Leprosy Eradication Programme (NLEP) led to the integration of the employees working in the said Scheme into the Multipurpose Health Workers Scheme. The integration of the Multipurpose Health Workers Scheme with the Leprosy Eradication Scheme took place vide GOMs No. 320, Health and Family Welfare (G-1) Department dated 27-6-1997.
7. The G.O dated 27-6-1997 sets out the rationale for the integration as follows:
“The National Leprosy Eradication Programme is in operation in Tamil Nadu from 1955. With the introduction of the Multi-Drug Therapy (MDT) comprising these drugs: Dapsone, rifampcin and clofazimine, incidence of leprosy has been brought down considerably. Tamil Nadu has done a commendable work in the Leprosy Control Programme over the years. The prevalence of leprosy in Tamil Nadu was 118 per 10,000 in 1983 which has been reduced to 7 per 10,000. The reduction in prevalence rate for the last two years is not very significant. Recently, India hosted an International Meet on Eradication of Leprosy and the Prime Minister has set a goal that the leprosy should be eradicated from India by 2000 A.D The IWHO has also taken similar efforts globally. The eradication of leprosy means bringing down the prevalence rate to 1 per 10,000.”
8. Thus, the Government of India in 1990-1991 had suggested integration of leprosy services. It was felt that in order to sustain leprosy services at the operational level, its integration with the public health services will be desirable. Integration would not result in abolition of special services. On the contrary, specialised component will continue to be available within the general health services at the State and district level for planning and evaluation, provision of training, technical supervision, advice, referral services and research. The purpose of this integration would be to involve the leprosy field staff in public health work and Health Inspectors in the leprosy work, so that the Leprosy Inspector will cover a population of 5000 to 10,000 as against 25,000 which was being covered at that time by the Leprosy Inspectors. The Government of Tamil Nadu had also upon considering, for quite some time, the question of integrating the leprosy services with Multipurpose Health Workers Scheme, under the Primary Health Care Services, constituted a committee by GOMs No. 1705 dated 18-12-1996 to go into the various aspects of integration and submit a report. The recommendations submitted by the aforesaid Committee were examined by the Government and accepted with some modifications.
9. Thus, GOMs No. 320 dated 27-6-1997 was issued integrating Leprosy Control Scheme with Multipurpose Health Workers Scheme. The G.O made elaborate provisions with regard to: (i) the administrative control of the National Leprosy Eradication Programme, which was to be vested with the Director of Public Health and Preventive Medicine, who was to be responsible for the implementation of the National Leprosy Eradication Programme activities in the State. At the district level, the Deputy Director of Medical Services (Leprosy) would be the in-charge of the hospital based units, and would be the Programme Officer, assisted by the Deputy Director (Health Services), and (ii) the salary and other components of the programme staff. It was further provided that salary and other components of the programme staff under the control of the Deputy Director of Medical Services (Leprosy) will be met from the existing allotment under Demand 18.
10. Clause 4(vii) of the aforesaid G.O was as under:
“The posts of the Health Educator, Non-Medical Supervisor and Leprosy Inspectors redesignated as Health Inspector Grade IB are brought under the control of Director of Public Health and Preventive Medicine for programme implementation. However, separate seniority shall be maintained for these staff and the promotions of the respective categories will continue in the existing channals (sic).”
11. The other relevant clause would be 5(iv), which is as under:
“Leprosy Inspectors: The Leprosy Inspectors will be redesignated as Health Inspector Grade IB and will be transferred to the Directorate of Public Health and Preventive Medicine. They will be posted to the Health Sub-Centres covering a population of about 10,000 one for 2 Health Sub-Centres or at one for 5000 population in problem areas. The scale of pay of this category of staff will continue to be in the existing scale of pay of Rs 1200-30-1560-40-2040. However, in order to protect their present emoluments they will be allowed special allowances of Rs 50 per month and the existing Health Inspector Grade I under the control of the Director of Public Health and Preventive Medicine will be redesignated as Health Inspector Grade IA in the scale of pay Rs 1350-30-1440-1800-50-2200. The Health Inspector Grade IB will attend to and undertake various public health activities as per the job chart for Health Inspector Grade IA in Health Inspectors Grade IA and Grade II will also attend to Leprosy Control Work apart from their existing duties after necessary training. The Director of Public Health and Preventive Medicine will issue necessary further orders prescribing revised job chart for the Health Inspector Grade IA, Health Inspector Grade IB and Health Inspector Grade II.”
12. Similarly, provision was made for absorption of Ministerial staff in Clause 6 of the G.O in the following terms:
“Ministerial Staff: One of the two sections at the State Headquarters will be transferred to the Office of the Director of Public Health and Preventive Medicine to look after the service matters of the leprosy staff other than those coming under Director of Medical and Rural Health Services. Further one Assistant will be transferred from the Office of the Deputy Director (Lep.) to the Deputy Director of Health Services in the districts. The administrative control of the above staff will vest with the Director of Public Health and Preventive Medicine. The remaining ministerial staff sanctioned for Leprosy Control Programme will be transferred and posted to the institutions under the control of the Director of Medical and Rural Health Services. The establishment matters of all the ministerial staff including the staff attached to the Director of Public Health and Preventive Medicine will, however, continue to be with the Director of Medical and Rural Health Services for the purpose of future promotions in the respective categories. The salary and allowances of the ministerial staff attached to the Director of Public Health and Preventive Medicine will be met from the existing budget allotment under Demand 10 Medical by Director of Public Health and Preventive Medicine. In respect of other ministerial staff salary and other allowances will be met by the Director of Medical and Rural Health Services from the budget allotment under Demand 18 Medical.”
13. By Clause 8, even the transportation vehicles were transferred as under:
“The Government direct that the 102 vehicles along with the drivers working in the leprosy control units shall be transferred to the Director of Public Health and Preventive Medicine.”
14. By Clause 10, all the government buildings occupied by the Government Leprosy Control Units were placed under the control of the Director of Medical and Rural Health Services along with the equipment and furniture for expansion of Taluka hospitals, except in places where the buildings were required for the Office of the Deputy Director of Health Services. Under Clause 11, the Director of Public Health and Preventive Medicine was also directed to take immediate action to impart necessary training to the leprosy staff in various public health activities. Similarly, the public health staff was directed to be trained in leprosy control activities.
15. By Clause 13, it was directed that the integration of the Leprosy Control Programme with the Director of Public Health and Preventive Medicine will take effect from 1-7-1997. It appears that upon issuance of the G.O, the merger was completed by 1-8-1997. It would be apparent from Clause 5(iv) of the 1997 G.O that the Leprosy Inspectors were designated as Health Inspector Grade IB and transferred to the Directorate of Public Health and Preventive Medicine. They were to be paid according to their existing scale of pay of Rs 1200-30-1560-40-2040. In order to protect their present emoluments, they were given special allowance of Rs 50 per month. The existing Health Inspectors Grade I under the control of Director of Public Health and Preventive Medicine were designated as Health Inspectors Grade IA. They were in the pay scale of Rs 1350-30-1440-1800-50-2200. It is also apparent that the Health Inspectors Grade IB were to undertake various public health activities as per the job chart for Health Inspector Grade IA. Furthermore, Health Inspectors Grade IA and Grade II were to attend to leprosy control work apart from their existing duties after necessary training. Thereafter, the issue with regard to the merger of the two categories of Health Inspectors Grade IA and Grade IB into a single category was to be examined at the time of the next Pay Commission. But it appears that the issue was not examined in the official Committee of 1998.
16. From the above narration, it becomes clear that there was complete integration of the Leprosy Control Scheme with the Multipurpose Health Scheme through GOMs No. 320 dated 27-6-1997. Also, the fact that non-possession of Sanitary Inspector Course by the Leprosy Inspectors was not viewed with any serious concern is evident from the fact that the 1997 Scheme was never challenged by the appellants.
17. Thereafter, the Director of Public Health and Preventive Medicine in his letters dated 17-2-2006 and 15-7-2006 set proposals for redesignation of post of Health Inspectors Grade IB as Health Inspector Grade I considering their length of service in the department, without imparting any training to them. He had suggested the aforesaid proposal for administrative convenience. At the same time, the Public Health Department Officials Association (Leprosy) had been requesting the Government repeatedly for redesignating them as Health Inspector Grade I. By letter dated 24-1-2006, the Government requested the Director of Public Health and Preventive Medicine to send the necessary detailed proposal for imparting in-service training for a period of one week for all the Health Inspectors Grade IB so as to redesignate them as Health Inspectors Grade I. The proposal was also to include detail of expenditure involved in the proposed training and where the expenditure to be made out from the leprosy funds.
18. At this stage, some employees filed a number of writ petitions challenging the instructions issued in the Government Letter dated 24-1-2006 in the High Court of Madras. In its order dated 20-1-2007, in MPs Nos. 2 and 3 of 2006 in Writ Petition No. 23893 of 2006, the High Court directed that redesignation made by the respondents shall be subject to the writ petition. At the same time, the High Court dismissed Writ Petitions Nos. 7892 and 7893 of 2006 on 22-3-2006 WP No. 7892 of 2006 with the observation that before any order is passed on the proposal, the State shall consider the objections of the petitioners therein. It appears that Writ Petitions Nos. 6250 and 6251 of 2006 had also been filed at the Madurai Bench of the Madras High Court in which a stay order had been granted on 1-8-2006. The stay order was, however, vacated on 27-4-2007. At the same time, the Tamil Nadu Health Inspectors Association had also given a representation raising their objection for redesignation of the Health Inspector Grade IB as Health Inspector Grade I.
19. Upon examination of the entire issue and taking into account the necessity for the merger of the Leprosy Control Scheme with Multipurpose Health Workers Scheme, the Government issued a further G.O on 12-10-2007 accepting the proposals of the Director of Public Health and Preventive Medicine to redesignate the Health Inspector Grade IB as Health Inspector Grade I for the purpose of administrative convenience and to allow the scale of pay of Rs 4500-125-7000. The aforesaid proposal was accepted through GOMs No. 382 dated 12-10-2007. In this G.O, the rule relating to the possession of the Sanitary Inspectors Course or Multipurpose Health Worker (Male) Training Course was relaxed in favour of these Health Inspectors Grade IB to designate them as Health Inspector Grade I, without affecting the rights of the existing Health Inspector Grade I working in the Public Health Department.
20. The conditions of absorptions were contained in Clause 6 of the aforesaid G.O which is as under:
“The Government has therefore decided to accept the proposals of the Director of Public Health and Preventive Medicine to redesignate the Health Inspectors Grade IB as Health Inspector Grade I for the purpose of administrative convenience and to allow the scale of pay of Rs 4500-125-7000. The rule relating to possession of Sanitary Inspector Course (or) Multipurpose Health Worker (Male) Training Course is relaxed in favour of these Health Inspectors Grade IB to designate them as Health Inspector Grade I, without affecting the rights of the existing Health Inspector Grade I working in Public Health Department. The Government accordingly issued the following orders:
(i) The post of Health Inspector Grade IB shall hereafter be designated as Health Inspector Grade I and the scale of pay of Rs 4500-125-7000 be allowed to them from the date of issue of the order.
(ii) Fixation of pay in the revised scale of pay shall be allowed only from the date of issue of orders under Fundamental Rule 23 at the same stage if there is a stage or next stage if there is no such stage. They are eligible for monetary benefits only from the date of issue of the government order.
(iii) The above redesignation is subject to the result of Writ Petition No. 23893 of 2006 pending in the High Court of Madras and Writ Petitions Nos. 6250 and 6251 of 2006 pending before the Madurai Bench of Madras High Court.
(iv) These redesignated Health Inspector Grade I will be placed in the seniority list of Health Inspector Grade I below the last person of the Health Inspector Grade I already working in the Department. As the redesignation as Health Inspector Grade I is given only from the date of issue of the order in relaxation of rule relating to possession of Sanitary Inspectors course, these redesignated Health Inspector Grade I cannot claim seniority now or in future in the post of Health Inspector Grade I from the date of their absorption in the Public Health Department as per GOMs No. 320 Health dated 27-6-1997.
(v) The redesignated Health Inspector Grade I cannot claim promotion to the post of Block Health Supervisor, and Technical Personal Assistant till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor, and Technical Personal Assistant. However, the existing promotion channel as Non-Medical Supervisor and Health Educator shall be allowed to them till their turn for promotion to the post of Block Health Supervisor, Technical Personal Assistant, comes as per their seniority.”
21. At this stage, the respondents i.e the employees of the erstwhile Leprosy Control Scheme challenged Clauses 4 and 5 of Para 6 of the aforesaid G.O in Writ Petitions Nos. 17578, 12654, 25844 and 27982 of 2008. Apart from the aforesaid challenge, GOMs No. 382 was also challenged by the present appellant in Writ Petition No. 34401 of 2007.
22. It would be appropriate to notice here that the Government of Tamil Nadu issued GOMs No. 73 dated 28-2-2008, whereby the Director of Public Health and Preventive Medicine was permitted to implement the orders of the High Court dated 21-11-2007 WP No. 25608 of 2006, wherein it was decided that only those Health Inspectors Grade I who had the Sanitary Inspector Course Certificate were entitled to be considered for promotion to the next post of Block Health Supervisor.
23. At the same time, the laboratory assistants, who were promoted as Health Inspectors Grade I; and the directly recruited Multipurpose Health Assistants, who were promoted as Health Inspectors Grade I filed a batch of writ petitions viz. Writ Petitions Nos. 2249, 10807, 17550 and 25608 of 2006 and Nos. 8987, 8988 and 9185 of 2007 with a prayer to restrain the department from drawing the panel for the post of Block Health Supervisor by including the names of Health Inspectors Grade I, who did not possess either Sanitary Inspector Course Certificate or Multipurpose Health Course Certificate.
24. It is pertinent to note here that the Unipurpose Health Workers who got absorbed into Multipurpose Health Scheme in 1988 and were made Health Inspectors Grade I in 1999 did not possess the aforesaid certificates and this very fact was the grievance made against the said Unipurpose Health Workers. The petitioners in the aforesaid bunch of writ petitions were in possession of the said certificates. It was their case that since Unipurpose Health Workers were promoted as Health Inspectors Grade I as a one-time measure after completing 20 years of services, they were not entitled to further promotion on the post of Block Health Supervisor. Their promotion was, therefore, sought to be challenged on the twin grounds that: (i) they did not possess the necessary certificate, and (ii) they were already recipients of the benevolence of the Government in that they had been given promotion as Health Inspectors Grade I as a one-time measure.
25. A Single Judge of the High Court allowed the aforesaid writ petition on 21-11-2007 WP No. 25608 of 2006, accepting both the grounds raised in the writ petition. As noticed above, the Government accepted and implemented the aforesaid order of the learned Single Judge, through GOMs No. 73 dated 28-2-2008. The aforesaid G.O now prompted the Health Inspector Grade I (erstwhile Unipurpose Health Workers), who were not in possession of the required certificate to challenge the same. They filed Writ Petitions Nos. 8339 and 1459 of 2008 with a prayer for quashing the aforesaid GOMs No. 73. The same category also filed Writ Appeal No. 312 of 2008 challenging the order dated 21-11-2007 WP No. 25608 of 2006, passed by the learned Single Judge, which had been implemented by the Government by issuing GOMs No. 73 of 28-2-2008. All these matters were taken up for consideration by the Division Bench of the Madras High Court and decided vide judgment dated 23-7-2010 (2010) 6 MLJ 468.
26. The aforesaid judgment has been challenged in the following civil appeals: Civil Appeals Nos. 4483 to 4504 of 2013.
27. By the impugned judgment (2010) 6 MLJ 468, the Division Bench of the High Court has held that even though Unipurpose Health Workers had been given a concession of one-time promotion, it would not act as an embargo on their subsequent promotion. Furthermore, the requirement of possession of certificate was waived only for absorption of Unipurpose Health Workers as Multipurpose Health Assistants. Thereafter, GOMs No. 4 dated 4-1-1993 provided that the requirement of 5 years' service as Basic Health Workers, Vaccinators, Cholera Workers in the Tamil Nadu Public Health Subordinate Service was sufficient for promotion to the post of Health Inspector Grade I. Similarly, 5 years' service in the post of Health Inspector Grade I was sufficient for promotion as Block Health Supervisor.
28. The High Court emphasised that the Rules nowhere contemplate that Health Inspector Grade I, who did not possess the required certificate could not be promoted as Block Health Supervisor. The only requirement of the Rules was that for promotion as Block Health Supervisor, the candidate shall have 5 years' service as Health Inspector Grade I. Consequently, the judgment of the learned Single Judge was set aside and GOMs No. 73 dated 28-2-2008 was quashed. It was made clear that those Health Inspector Grade I who were not in possession of the Sanitary Inspector Course Certificate or Multipurpose Health Workers Training Course Certificate are eligible for promotion to the post of Block Health Supervisor from the date on which their juniors were promoted with all benefits.
29. The Division Bench thereafter turned its attention to the main controversy between Health Inspector Grade I, who had been redesignated as Health Inspector Grade IA and Leprosy Inspectors, who had been redesignated as Health Inspectors Grade IB. The High Court has accepted the claim of the respondents that their absorption as Health Inspector Grade I had to be given effect to w.e.f 1-8-1997. The aforesaid conclusion of the High Court is based upon the rationale that upon integration, the nature of duties and responsibilities performed by Health Inspector Grade IA and Grade IB were one and the same. The fact that Grade IA was enjoying a higher scale of pay than the pay scale of Inspector Grade IB was of no relevance, for the purpose of equivalence of posts. Whilst allowing the claim of the respondents and accepting that they have been absorbed as Health Inspector Grade I w.e.f 1-8-1997, the High Court, however, directed that they would be placed at the bottom of the seniority of serving Health Inspectors Grade I as on 1-8-1997. Consequently, Writ Petitions Nos. 8339, 12654, 14592, 17578, 25844 and 27982 of 2008 and the writ appeal in WA No. 312 of 2008 were allowed. However, Writ Petitions Nos. 23893 of 2006 and 34401 of 2007 were dismissed.
30. We have heard the counsel for the parties at great length.
31. The first submission of Mr P.P Rao, the learned Senior Counsel on behalf of the petitioner, is that executive instructions cannot supplant statutory rules and for the redesignation of Health Inspectors Grade IB as Health Inspectors Grade I an amendment in the relevant statutory rules was necessary. He relies upon Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910, (1968) 1 SCR 111 in support of this submission. This submission has been reiterated by all the counsel for the appellants. Mr S. Gomathinayagam, relies upon Prafulla Kumar Das v. State of Orissa (2003) 11 SCC 614, Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1, Uday Pratap Singh v. State of Bihar 1994 Supp (3) SCC 451, (1994) 28 ATC 453.
32. The second contention of Mr P.P Rao is that the academic qualifications prescribed for a post cannot be relaxed and the length of experience cannot be a substitute for educational qualifications prescribed. [Relied on: Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575, (1994) 26 ATC 192, Suraj Parkash Gupta v. State of J&K (2000) 7 SCC 561, R.S Garg v. State of U.P (2006) 6 SCC 430, State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 and State of M.P v. Dharam Bir (1998) 6 SCC 165.] Thus, it has been pointed out that the relaxation given, firstly, vide GOMs No. 593 dated 11-9-1995; and then vide GOMs No. 382 dated 12-10-2007 with regard to the qualification of Sanitary Inspector Course or Multipurpose Health Worker (Male) is in violation of Articles 14 and 16 of the Constitution of India. It is also pointed out that the relaxation amounts to treating unequals as equals. This submission was reiterated by Mr S. Gomathinayagam. The learned Additional Advocate General placed reliance upon Haryana SEB v. Gulshan Lal (2009) 12 SCC 231.
33. The learned counsel further pointed out that any such relaxation, even if valid, can only be prospective in application from the said order. However, the Division Bench of the High Court has given retrospective effect to G.O No. 382 dated 12-10-2007. Thus, the impugned judgment/order (2010) 6 MLJ 468 has in fact added to the illegal benefit given to the respondents by the aforesaid G.O No. 382. They have placed reliance upon Nani Sha v. State of Arunachal Pradesh (2007) 15 SCC 406. In addition, it is submitted that the Sanitary Inspector Course is still available and that it is required for promotion to the post of Block Heath Supervisor.
34. All the learned counsel have reiterated the submissions of Mr P.P Rao that Court would not enforce negative equality. In support of this submission they relied upon Gurdeep Singh v. State of J&K 1995 Supp (1) SCC 188, (1995) 29 ATC 149, Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35, Gursharan Singh v. New Delhi Municipal Committee (1996) 2 SCC 459 and Shanti Sports Club v. Union of India (2009) 15 SCC 705.
35. Mr Rao, Mr Giri, Mr Ganguli, learned Senior Counsel; Mr Poongkuntran, Ms Mohana and Mr S. Gomathinayagam, learned counsel, have submitted that no merger between the Health Inspector Grade IB and Health Inspectors Grade I can be considered to have had taken place. The fact that a clear distinction was maintained with regard to the said posts even after 1997 would show the lack of any merger. Further, it cannot be overlooked that leprosy service was not abolished. Also, the very fact that separate seniority channel of promotion for the Leprosy Inspectors redesignated as Health Inspectors Grade IB was maintained, would show that there was no merger. Mr S. Gomathinayagam further points out that the High Court's order has resulted in giving double promotion to the said Leprosy Inspectors on the basis of GOMs No. 382 dated 12-10-2007. Mr Ganguli, learned Senior Counsel, has relied upon Sanjay Kumar Manjul v. UPSC (2006) 8 SCC 42. Besides, Mr Giri, learned Senior Counsel, has relied upon R.K Sethi v. Oil & Natural Gas Commission (1997) 10 SCC 616 in support of the submission that there is no valid merger in the present case.
36. Premising her contentions on the aforesaid submissions, Ms Mohana, learned counsel, pointed out that GOMs No. 320 dated 27-6-1997 which culminated in effectuating the second integration was never challenged by the Health Inspectors Grade IB, though they claimed that the duties being performed by them are similar to Health Inspectors Grade I. This, according to her, cannot be the ground for equating the post of Health Inspectors Grade IB with that of Health Inspectors Grade I. Thus, the judgment of the High Court is not correct insofar it has equated the aforesaid two posts. It has also been argued by the learned Additional Advocate General that the latter GOMs No. 382 was a consequential order based on earlier G.O No. 320 and, therefore, the writ petitioner(s) did not have any locus standi to challenge the consequential order. Reliance has been placed upon Laxmi Rattan Cotton Mills Ltd. v. State of U.P (2009) 1 SCC 695
37. Another submission is that the High Court wrongly confused and intermingled the controversy relating to promotions of employees involved in the first integration with that of the second integration. In this context, it was pointed out that the resolution of the issue relating to promotion under GOMs No. 593 dated 11-9-1995 of the employees who initially joined after 1989 as the Multipurpose Health Assistants from various Unipurpose Schemes have no relevance to the controversy relating to the Leprosy Inspectors redesignated as Health Inspector Grade IB, since both of the said posts are borne on separate and distinct cadres. It was also submitted that while allowing Writ Appeal No. 312 of 2008 which was filed by the employees who were initially working as Unipurpose Inspectors, the High Court did not go into the merits thereof. Furthermore, the benefit given to the employees under the said writ appeal was wrongly extended to the Leprosy Inspectors redesignated as Health Inspectors Grade IB. Reliance has been placed by Mr S. Gomathinayagam, in this context, upon T. Venkateswarulu v. Tirumala Tirupathi Devasthanams (2009) 1 SCC 546 and Ghulam Rasool Lone v. State of J&K (2009) 15 SCC 321.
38. Mr Rao also submitted that the absorbed employees are not entitled to count previous service in the earlier grade for the purpose of seniority in the new cadre. Reliance has been placed upon K.C Gupta v. Lt. Governor of Delhi 1994 Supp (3) SCC 408, (1994) 28 ATC 425, Sk. Abdul Rashid v. State of J&K (2008) 1 SCC 722 and Govind Prasad v. R.G Parsad (1994) 1 SCC 437, (1994) 26 ATC 612.
39. In reply, Mr P.S Patwalia, learned Senior Counsel for the respondents, submits that the integration of Leprosy Inspectors into the Department of Heath and Preventive Medicine which took place vide GOMs No. 320 dated 27-6-1997, was complete in all respects. According to him, this becomes clear from the detailed instructions contained in the said G.O The same submissions have been reiterated by Ms Nalini Chidambaram, learned Senior Counsel. Both the learned Senior Counsel submitted that a policy decision to merge two or more posts, cadres or services can be made implemented/enforced through an executive order/instructions as long as the executive order/or instructions do not run counter to the Rules. (Reliance for this submission was placed upon Officers' Assn. v. Indian Airlines Ltd. (2007) 10 SCC 684 and Vinay Kumar Verma v. State of Bihar (1990) 2 SCC 647, (1990) 13 ATC 699.) Mr Jaideep Gupta, learned Senior Counsel, has pointed out that the G.O through which the integration and merger have been ordered are in the nature of executive instructions. These instructions have not supplanted the statutory rules and are within the ratio of Sant Ram Sharma AIR 1967 SC 1910, (1968) 1 SCR 111 and Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171.
40. The next submission of Mr Patwalia, which is reiterated by the other learned Senior Counsel for the respondents, is that since the second integration was complete in all respects, the Leprosy Inspectors cannot be discriminated against in consideration of their eligibility for further promotion to the post of Block Health Supervisor, on the ground of initial recruitment. In other words, it has been argued that the “birthmark disappears after integration into a single class or cadre.” In this behalf, reliance has been placed upon: B. Manmad Reddy v. Chandra Prakash Reddy (2010) 3 SCC 314, S.L Sachdev v. Union of India (1980) 4 SCC 562, South Central Railway v. A.V.R Siddhantti (1974) 4 SCC 335 and State of Mysore v. M.H Krishna Murthy (1973) 3 SCC 559.
41. It has been also argued by Mr Patwalia that it needs to be appreciated that G.O No. 382 dated 12-10-2007 is in the nature of a clarification as it clarifies what ought to have been done in G.O No. 320 dated 27-6-1997. He has emphasised that since G.O No. 320 did not redesignate the Leprosy Inspectors as Health Inspectors Grade I in 1997, the 2007 order “sets the mistake right” of the State Government. He points out that the 2007 G.O itself speaks of the reasons for rectifying the mistakes committed in the 1997 Order. Thus, the G.O of 2007 merely reinforces the integration of 1997. In this respect, Mr Jaideep Gupta, learned Senior Counsel, has gone even further and submitted that even if it has to be assumed that the merger of the cadres took place effectively only on the passing of GOMs No. 382 dated 12-10-2007, the High Court was correct in concluding that Leprosy Inspectors redesignated as Health Inspectors Grade IB would be entitled to the benefit of their service in the post of Health Inspector Grade IB since 1997. Relying upon the law laid down in K. Madhavan v. Union of India (1987) 4 SCC 566, (1987) 5 ATC 91, R.S Makashi v. I.M Menon (1982) 1 SCC 379, Wing Commander J. Kumar v. Union of India (1982) 2 SCC 116 and Sub-Inspector Rooplal v. Lt. Governor (2000) 1 SCC 644; it has been contended that where persons from different sources are merged into one service, their pre-existing total length of service in the parent department has to be protected. Their previous service cannot be obliterated upon integration/merger.
42. Thus, it has been contented that the High Court has rightly given the benefit to the Leprosy Inspectors retrospectively from the date of second integration and correctly placed them at the bottom of the seniority list of the already existing Health Inspectors Grade I, with effect from 27-6-1997.
43. Mr Patwalia has further submitted that the insistence for qualification (Sanitary Inspector Course) for entry level/feeder post-Health Inspector Grade II for redesignation of Leprosy Inspectors as Health Inspector Grade I in 2007 is misplaced since the State Government has passed a reasoned order to this effect, after considering the report of the Special Committee constituted for integration. He further submitted that the argument of the appellants that since educational qualifications are different, nature of duties are different, there cannot be any integration, has been specifically rejected in Officers' Assn. case (2007) 10 SCC 684. Similarly, the argument that the absorption must be from the entry level in the new cadre was also rejected in the aforesaid case. Further, since the Sanitary Inspector Course has long been discontinued, it would be an impossible condition to fulfil.
44. We may also notice here that the submission of Ms Nalini Chidambaram, learned Senior Counsel, that since Rule 5 of Notification III under GOMs No. 1507 dated 16-8-1989 does not mention the Sanitary Inspector Course as a sine qua non for the post of Block Health Supervisor, the argument of the appellants that possession of such a course is necessary is unfounded. She has further submitted that the State Government is estopped from raising such an objection in this Court since before the High Court, it was admitted by the State that the Sanitary Inspector Course is not required to get designated as Health Inspectors Grade I.
45. All the learned counsel for the respondents emphasised that equity is in the favour of the respondents. It needs to be appreciated, according to them, that Leprosy Inspectors have lost the entire service from 1979-1989 till 1997. Also, that the State Government's stand before this Court is contradictory to that before the High Court, which is not permissible in view of the law laid down in Hari Bansh Lal v. Sahodar Prasad Mahto (2010) 9 SCC 655.
46. Besides, Ms Nalini Chidambaram, learned Senior Counsel, has submitted that the Health Inspectors Grade I who were working as Health Inspectors Grade II before the second integration never challenged the said integration and therefore, they are estopped from contending that they should be ranked senior to Health Inspectors Grade IB.
47. Mr Jaideep Gupta further submitted that the question of equation of posts does not depend merely on the fact that both posts were in same or similar pay scales. There are a number of other factors, namely, nature of duties, responsibilities, minimum qualification, etc., which have to be considered as a whole. In support of this submission, he relied on Union of India v. P.K Roy AIR 1968 SC 850, (1968) 2 SCR 186.
48. We have given considerable thought to the very elaborate submissions made by the learned Senior Counsel and the other counsel for all the parties.
49. The qualifications prescribed under the aforesaid Rules for the basic post of Health Inspector Grade II, were: (a) SSLC Pass Certificate; (b) one year long-term Multipurpose Health Worker (Male) Training Certificate; or (c) Sanitary Course Certificate with short-term Multipurpose Health Worker (Male) Training Certificate. The aforesaid provision contained in the Rules framed under Article 309 of the Constitution of India could not be amended by executive instructions. We have no hesitation in accepting the first submission of Mr Rao that the executive instructions cannot supplant the statutory rules, in view of the ratio of law laid down in Sant Ram Sharma AIR 1967 SC 1910, (1968) 1 SCR 111. The aforesaid ratio has been reiterated by this Court on numerous occasions. It is not necessary to make a reference to any of the subsequent decisions as it would be a mere repetition of the accepted ratio, noticed above. We are, however, of the opinion that the ratio of law laid down in Sant Ram Sharma case AIR 1967 SC 1910, (1968) 1 SCR 111 would not be applicable in the facts and circumstances of this case.
50. The qualification of having passed the one year long-term Multipurpose Health Worker (Male) Training Certificate or Sanitary Course Certificate with short-term Multipurpose Health Workers (Male) Training Certificate are the statutory requirements for recruitment and appointment on the post of Health Inspector Grade II. These qualifications would, therefore, be possessed by some of the incumbents on the promotional post of Health Inspector Grade II being Multipurpose Health Supervisor/Health Inspector Grade I as well. It is a matter of record that even in the cadre of Health Inspector Grade II, there were many incumbents who did not possess these qualifications. There was a category of employees i.e the direct recruit Health Inspectors Grade II who possessed the aforesaid qualifications. There was the other category i.e Unipurpose Health Workers consisting of Health Workers, Cholera Workers and Vaccinators, who had entered the cadre of Health Inspector Grade II without such qualifications. The requirement for having the aforesaid qualifications on the post of Health Inspector Grade II was waived by way of order GOMs No. 1936 dated 29-9-1982. Thus, it is evident that the possession of the two aforesaid qualifications was no longer considered a requirement for appointment on the post of Health Inspector Grade II. It is also a matter of record that the possession of the aforesaid qualifications was not prescribed for promotion to the post of Multipurpose Health Supervisor/Health Inspector Grade I. Notification III issued under GOMs No. 1507 dated 16-8-1989 provides for the following Rules applicable to the post of Multipurpose Health Supervisor that:
“2.
Constitution
The post shall constitute a distinct category in Class I of the said service.
3.
Appointment
Appointment to the post shall be made by promotion from the post of Multipurpose Health Assistant under the Multipurpose Health Workers Scheme.
4.
Appointment Authority
The appointment authority for the post shall be the Deputy Director of Public Health and Preventive Medicine.
5.
Qualification
Experience for a period of not less than five years in the category of Multipurpose Health Assistant under the Multipurpose Health Workers Scheme.”
51. By virtue of the aforesaid provisions, many Health Inspectors Grade II had been promoted as Health Inspectors Grade I, without possessing the aforesaid qualifications. It is also noteworthy, as admitted by the State Government, that the Sanitary Inspector Course was rescinded much prior to the issuance of GOMs No. 320 dated 27-6-1997, thus there was no opportunity for the Leprosy Inspectors to qualify for the aforesaid certificate. Yet the aforesaid G.O provided that since the Leprosy Inspectors do not possess the aforesaid qualifications, they shall be designated as Health Inspector Grade IB on integration with the post of Multipurpose Health Supervisor/Health Inspector Grade I. In view of the aforesaid developments, Leprosy Inspectors were fully eligible to be redesignated as Multipurpose Health Supervisor/Health Inspector Grade I. It was wholly unnecessary, unjustified and unfair to redesignate the Multipurpose Health Supervisors as Health Inspectors Grade IA and Health Inspectors Grade IB.
52. From the above, it becomes apparent that GOMs No. 320 dated 27-6-1997 did not have the effect of amending the Rules. It is also clear that the aforesaid G.O did not supplant the statutory provisions. It is also further clear that there was no relaxation of the qualifications on the post of Multipurpose Health Assistant (Health Inspector Grade II) or on the post of Multipurpose Health Supervisor (Health Inspector Grade I). Therefore, in our opinion, upon integration of Leprosy Inspectors into the cadre of Multipurpose Health Supervisors, the further categorisation into Health Inspector Grade IA and Health Inspector Grade IB was wholly unjustified. It had no rational nexus with any object sought to be achieved, and therefore, violated Articles 14 and 16 of the Constitution of India.
53. We may notice here that under GOMs No. 320 dated 27-6-1997, Clause 7 had provided that the post of Health Educator, Non-Medical Supervisor and Leprosy Inspectors (redesignated as Health Inspector Grade IB) were brought under the control of the Director of Public Health and Preventive Medicine. However, separate seniority was to be maintained for the aforesaid staff and the promotions of the respective categories will continue in the existing channel. Therefore, till the issuance of GOMs No. 382 dated 12-10-2007, Leprosy Inspectors continued to be promoted on the next higher post of Non-Medical Supervisor and Health Educator. It is noteworthy that the aforesaid GOMs No. 320 was not challenged and Leprosy Inspectors were being promoted under separate channels of promotion. Thus, it is evident that till the issuance of GOMs No. 382 of 2007, Health Inspector Grade IA, who had been promoted from the post/category of Health Inspector Grade I, had no grievance with the integration through GOMs No. 320 dated 27-6-1997.
54. In view of our above conclusions, we are unable to accept the third submission of Mr P.P Rao and the other learned counsel that there has been any relaxation with regard to qualification of Sanitary Inspector Course or Multipurpose Health Workers (Male) Training Certificate in violation of Articles 14 and 16 of the Constitution of India. As noticed earlier by GOMs No. 593 dated 11-9-1995 did not, in any manner, concern the Leprosy Inspectors. The aforesaid G.O was only issued for implementation of GOMs No. 1936, Health and Family Welfare dated 29-9-1982, with effect from 4-11-1988 which was implemented through GOMs No. 1507 dated 16-8-1989. The aforesaid relaxation was given to remove stagnation to Multipurpose Health Assistants, who were not able to get any promotion even after crossing the age of 50 years or having rendered 20 years of service. It was specifically noticed in GOMs No. 593 dated 11-9-1995 that possession of the Multipurpose Health Workers (Male) Training Certificate and Sanitary Course Certificate with short-term Multipurpose Health Workers (Male) Training Certificate was not a precondition for absorption of Basic Health Workers, Vaccinators, Cholera Workers as Multipurpose Health Assistants. Therefore, at the time when GOMs No. 320 was issued, the aforesaid qualifications were not acquired. Even if required, the same had been duly relaxed. Therefore, it would also not be possible to accept the submission of Mr Rao that the relaxation given to the Leprosy Inspectors was either arbitrary or discriminatory. The State was within its powers to relax the aforesaid qualification in exercise of its powers of the Tamil Nadu State and Subordinate Services Rules, 1955.
55. Rule 48 of the aforesaid Rules provides as under:
“48. Notwithstanding anything contained in these Rules or in the Special Rules, the Governor shall have power to deal with the case of any person or class of persons serving in a civil capacity under the Government of Tamil Nadu or of any person who has or of any class of persons who have served as aforesaid or any candidate or class of candidates for appointment to a service in such manner as may appear to him to be just and equitable:
Provided that, where any such rule is applicable to the case of any person or class of persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by that rule.”
56. Therefore, the provision contained with regard to any relaxation given to any of the categories under GOMs No. 320 dated 27-6-1997 and under GOMs No. 382 dated 12-10-2007 being traceable to the power under Rule 48 of the 1955 Rules cannot be said to be without any legal authority or jurisdiction. We, therefore, reject the aforesaid submission of the counsel for the petitioners also. We are of the opinion that in fact injustice had been caused to the Leprosy Inspectors at the time when GOMs No. 320 dated 27-6-1997 was issued, which has been rectified by issuing GOMs No. 382 dated 12-10-2007. As noticed above, the qualification of Multipurpose Health Worker (Male) Training Certificate, the qualification of Sanitary Course Certificate with short-term Multipurpose Health Worker (Male) Training Certificate were not the required qualification for appointment as Multipurpose Health Supervisors. These were also not the qualifications which were required for being appointed as a Leprosy Inspector. However, even though by the 1997 integration through GOMs No. 320 dated 27-6-1997, the Leprosy Inspectors were equated with Multipurpose Health Supervisors, both categories were not given the same designation. The Multipurpose Health Supervisors were designated as Health Inspector Grade IA, while Leprosy Inspectors were designated as Health Inspector Grade IB. The aforesaid categorisation of Leprosy Inspectors as Health Inspector Grade IB was founded on a fallacy. It was wrongly assumed by the State that Leprosy Inspectors could not be designated as Multipurpose Health Supervisors as they did not possess the necessary qualification for the basic post of Health Assistants i.e Health Inspector Grade II. The mere fact that Leprosy Inspectors were not placed in the feeder cadre of Health Inspector Grade II makes it evident that they were not required to possess the qualifications of the basic posts. They were in fact from the very inception being equated with the post of Multipurpose Health Supervisor (Health Inspector Grade I). It was not a case of upgradation of the post of Leprosy Inspector to the post of Multipurpose Health Supervisor. The two posts were equated. Leprosy Inspectors were transferred and brought under the control of the Director of Public Health and Preventive Medicine for programme implementation. On transfer, they were redesignated as Health Inspector Grade IB. Inspite of the fact that the aforesaid two qualifications of one year long-term Multipurpose Health Workers (Male) Training Certificate and Sanitary Course Certificate with short-term Multipurpose Health Worker (Male) Training Certificate were not the essential qualifications for appointment as Health Inspector Grade I, the post of Health Inspector Grade I was unnecessarily split into Health Inspector Grade IA and Grade IB.
57. The learned counsel for the petitioner had also submitted that relaxation even if valid can only be prospective in its application. The aforesaid proposition of law also would not be applicable in the facts and circumstances of this case.
58. We are of the opinion that injustice had been done to the Leprosy Inspectors at the time of the 1997 merger/integration. In spite of a complete merger, GOMs No. 320 dated 27-6-1997 still provided in Para 4 of Clause 7 of the G.O that the incumbents of the post of Health Inspector Grade IB, although brought under the control of the Director of Public Health and Preventive Medicine for programme implementation shall be placed in a separate seniority list, and the promotions of the respective categories will continue in the existing channels. Although Inspectors Grade IB were placed in a lower pay scale, they were to attend various public health activities as per the job chart for Health Inspector Grade IA, in addition to Leprosy Control Programme. Similarly, Health Inspector Grade IA and Grade II were to attend the Leprosy Control Work apart from their existing duties after necessary training. It was made clear that the Director of Public Health and Preventive Medicine will issue necessary further orders prescribing revised job chart for the Health Inspector Grade IA, Health Inspector Grade IB and Health Inspector Grade II. Therefore, it seems apparent that there was complete integration of Leprosy Control Scheme with Multipurpose Health Workers Scheme with effect from 1-7-1997 and the process of integration was actually completed by 1-8-1997. As held in P.K Roy AIR 1968 SC 850, (1968) 2 SCR 186, an issue concerning the posts has to be considered from a broader prospective, and it does not depend merely on the salary of the employees. Broadly speaking, the relevant factors could be: (i) the nature and duties of a post, (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. Further, it was also held in the aforesaid case that: (Sub-Inspector Rooplal case (2000) 1 SCC 644)
“17. … If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post ‘not equivalent’.”
Since the post of Health Inspector Grade IB was for all practical purposes equal to Health Inspector Grade IA, there was no legal justification to continue the disparity in the pay scales of Health Inspector Grade IA and Health Inspector Grade IB. The High Court, therefore, rightly gave the benefit of equation of post of the Health Inspector Grade IB with that of the Health Inspector Grade IA from the date of their integration in 1997.
59. Having accepted the complete merger of the cadre of Health Inspector Grade IB with Health Inspector Grade IA and all being redesignated as Health Inspector Grade I, GOMs No. 382 of 2007 failed to achieve the intended result. It still discriminated against the erstwhile Health Inspector Grade IB, by robbing them of service from 1997 to 2007. They were given the pay scale of Rs 4500-125-7000 but from the date of the GOMs No. 382 of 2007 i.e 12-10-2007. Further, they were placed en bloc at the bottom of the seniority list of Health Inspector Grade I. This denial of seniority was justified on the ground that “as the redesignation of Health Inspector Grade I is given only from the date of the issue of the order in relaxation of rule relating to possession of Sanitary Inspector Course, they cannot claim the benefit of service since integration on 27-6-1997”. The redesignated Health Inspector Grade I were also denied promotion on the post of Block Health Supervisor and Technical Personal Assistant till the last person in the category of Health Inspector Grade I is promoted as Block Health Supervisor. They were given the alternate route of promotion as Non-Medical Supervisor and Health Educator, till their turn comes for promotion, as per their seniority.
60. Upon merger of the two posts, it was no longer permissible to treat the redesignated Health Inspector Grade IA differently from Health Inspector Grade IB. Since 1997, all incumbents on the posts of Health Inspector Grade IA and Health Inspector Grade IB were performing the same duties. There was intermixing of the duties performed by the two categories of the Health Inspector Grade IA and IB. Both the posts had lost their original identity since 27-6-1997, and formed one homogenous cadre. Further, having relaxed the qualifications on the basis of their length of service and experience, they were on a par with the Health Inspector Grade IA. Thereafter, the State was not justified in denying to the erstwhile Health Inspector Grade IB, the same treatment as was given to Health Inspector Grade IA. Therefore, the respondents could not have been denied the benefit of service on the post of Health Inspector Grade I from the date of the initial integration. It would be appropriate to notice the ratio of law laid down in Sub-Inspector Rooplal (2000) 1 SCC 644, wherein it was inter alia held that the previous service of the transferred officials who are absorbed in an equivalent cadre in the transferred post is permitted to be counted for the purpose of determination of seniority. It would be appropriate to notice here that Leprosy Inspectors redesignated as Health Inspector Grade IB have not been granted the benefit of seniority in their cadre from the date of their initial appointment. They have been deprived of their service on the post of Leprosy Inspector up to 27-6-1997 when they were integrated and redesignated as Health Inspector Grade IB. However, upon merger w.e.f 27-6-1997, there was no distinction in the services rendered by Health Inspector Grade IA and Health Inspector Grade IB. Therefore, in our opinion, the provision in GOMs No. 382 of 2007 not to grant the Health Inspectors Grade IB/erstwhile Leprosy Inspectors the benefit of the service from 1997 for determination of their seniority for promotion to the post of Block Health Supervisor was completely unjustified.
61. Thus, the High Court, in our opinion, was completely justified in quashing Clauses 6(iv) and (v) of GOMs No. 382 of 2007. The High Court has correctly held that the redesignated Health Inspector Grade I ought to have been given the same scale of pay as Health Inspector Grade IA from the date of the merger. In fact, on that date itself, the two posts should have been redesignated as Health Inspector Grade I, enjoying the same scale of pay, as all incumbents were performing the same duties and shouldering the same responsibilities. It was not permissible for the State to treat the redesignated Health Inspector Grade I differently from the Health Inspector Grade IA, on the basis of the initial source of recruitment.
62. The birthmark was obliterated on the merger of the post of Leprosy Inspector with Health Inspector Grade I. There was no justification of putting Health Inspector Grade IB in the pay scale of Rs 1200-2010, whilst Health Inspector Grade IA was placed in the pay scale of Rs 1350-2200. At the time of integration, both the categories had to be given the same pay scale i.e Rs 1350-2200. In this respect, the principle of law laid down by this Court, time and again, is that a classification based on the birthmark that stood obliterated after integration of officers, coming from different sources into a common cadre/category, would be wholly unjustified and discriminatory. This principle was relied upon by this Court in B. Manmad Reddy (2010) 3 SCC 314 wherein this Court reiterated the observations of this Court in para 5 of Roshan Lal Tandon v. Union of India AIR 1967 SC 1889, (1968) 1 SCR 185: (AIR p. 1893)
“5. … In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade D, there was one class in Grade D formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade D were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade C.”
63. Since GOMs No. 382 dated 12-10-2007 was issued to remove the injustice done to Leprosy Inspectors at the time when GOMs No. 320 dated 27-6-1997 was issued. We are unable to accept the submission of Mr Rao that any unjustified retrospective effect has been given to GOMs No. 382 dated 12-10-2007. Consequently, we also do not find any merit in the submission of Mr Rao that granting the benefit of service to Health Inspectors Grade IB on the post of Health Inspector Grade I resulted in enforcement of a negative equity. Therefore, the judgments relied upon by the learned counsel would not be applicable in the facts and circumstances of this case.
64. In view of the detailed reasons given above, we also do not find any merit in the submission of the learned counsel for the petitioners that there was not a complete merger between the post of Leprosy Inspectors and Multipurpose Health Supervisor, by GOMs No. 320 dated 27-6-1997.
65. We also do not find any substance in the submission of the Additional Advocate General, that the erstwhile Leprosy Inspectors have been given double benefit of promotion as they still continue to enjoy original channel of promotion on the post of Non-Medical Supervisor and Health Educator.
66. The promotion on the aforesaid posts were being given to the Health Inspectors Grade IB only in view of the wholly illegal prohibition contained in GOMs No. 320 of 1997.
67. These observations are fully applicable in the facts and circumstances of this case.
68. We, therefore, find the submissions of the appellant to be devoid of any merit. The High Court was justified in quashing Clauses 6(iv) and (v) of GOMs No. 382. The seniority of the respondent has to be fixed in the cadre of Health Inspector Grade I by giving the benefit of service from 27-6-1997. Further, they are eligible to be promoted on completion of 5 years service on the post of Health Inspector Grade I, though, they can be placed at the bottom of the seniority of serving Health Inspector Grade I as on 1-8-1997.
69. We may also mention here about the extent of interference of this Court in matters relating to integration or fusion of employees. This Court held in Officers' Assn. case (2007) 10 SCC 684 that the matter of integration or the fusion of employees, being one of policy, could not have been challenged by the employees unless the said decision was arbitrary, unreasonable or capricious. And as noticed earlier, that none of the government orders vide which integration was effectuated, suffers from any of the aforesaid irregularities. The High Court has merely undone the injustice done to the respondents. We are, therefore, not inclined to interfere in the well-reasoned order of the Division Bench of the High Court.
70. We have given considerable thought to the law laid in the judgments cited and relied upon by Mr Rao, learned Senior Counsel appearing on behalf of the petitioner.
71. However, none of the principles enunciated by this Court in the judgments cited by the learned counsel for the appellants have been infringed by any of the actions taken on the basis of GOMs No. 320 dated 27-6-1997 and GOMs No. 382 dated 12-10-2007. In our opinion, the High Court, in fact rightly quashed and set aside the offending Clauses 6(iv) and (v) of GOMs No. 382 dated 12-10-2007.
72. At this stage, we may summarise the conclusions recorded by us in the following manner:
72.1 The integration of Leprosy Inspectors into the Department of Health and Preventive Medicine by GOMs No. 320 dated 27-6-1997 was complete in all respects.
72.2 The aforesaid GOMs No. 320 dated 27-6-1997 did not bring about an amendment in the statutory services rules contained in GOMs No. 1507 dated 16-8-1989. The GOMs was supplementary to the aforesaid Rules and did not supplant the same.
72.3 There was no relaxation in the educational qualifications for the integration/redesignation of Leprosy Inspectors as Multipurpose Health Supervisors as the post of Leprosy Inspector was equated with the post of Multipurpose Health Supervisor. The qualifications prescribed for appointment to the post of Multipurpose Health Assistants redesignated as Health Inspector Grade II were not applicable for the post of Multipurpose Health Supervisor.
72.4 Since there was a complete integration of the posts of Leprosy Inspector and Multipurpose Health Supervisor by virtue of GOMs No. 320 dated 27-6-1997, both categories were entitled to the same treatment. Therefore, Leprosy Inspectors redesignated as Health Inspector Grade IB were entitled to the pay scale of Rs 1350-2000 w.e.f 1-8-1997 and the pay scale of Rs 4500-7000 w.e.f the same were given to the Health Inspector Grade IA, with all the consequential benefits.
72.5 Upon integration vide GOMs No. 320 dated 27-6-1997, Multipurpose Health Supervisors and Leprosy Inspectors were to be redesignated as Health Inspector Grade I. The birthmark of the Leprosy Inspector got obliterated with the integration. There could be no further distinction in the cadre of Health Inspector Grade I. There could be no such division as Health Inspector Grade IA and Health Inspector Grade IB.
72.6 Since Clauses 6(iv) and 6(v) of GOMs No. 382 dated 12-10-2007 are in violation of Articles 14 and 16 of the Constitution of India, they have been correctly struck down by the High Court.
72.7 The denial of seniority to the redesignated Health Inspectors Grade IB i.e erstwhile Leprosy Inspectors on the post of Health Inspector Grade I w.e.f 1-8-1997 to 12-10-2007 violated Articles 14 and 16 of the Constitution of India. The Division Bench of the High Court has correctly concluded that the integrated Leprosy Inspectors, redesignated as Health Inspector Grade IB are to be redesignated as Health Inspector Grade I and to be given seniority as well as consequential reliefs such as seniority and further promotions.
72.8 The provision contained in Clause 6(v) of GOMs No. 382 dated 12-10-2007 denying promotion of the redesignated Health Inspector Grade I to the post of Block Health Supervisor and Technical Personal Assistant till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor and Technical Personal Assistant, has been rightly held by the High Court to be violative of Articles 14 and 16 of the Constitution of India.
72.9 The continuance of the existing promotion channels as Non-Medical Supervisor and Health Educator to the redesignated Health Inspector Grade I (erstwhile Leprosy Inspectors) did not amount to bestowing a double benefit upon this category. Therefore, the High Court did not enforce negative equality. The High Court has correctly observed that upon integration and merger into one cadre, the pre-existing length of service of the Leprosy Inspectors redesignated as Health Inspector Grade IB had to be protected as it cannot be obliterated. Therefore, the Leprosy Inspectors have been correctly placed at the bottom of the seniority list of the already existing Health Inspectors Grade I w.e.f 27-6-1997. Therefore, it cannot be said that benefit has been given to the Leprosy Inspectors/Health Inspector Grade IB/Health Inspector Grade I with retrospective effect.
73. In view of the aforesaid conclusions, we find no merit in any of the following civil appeals i.e Civil Appeals Nos. 4483-4504 of 2013. All of them are hereby dismissed.
74. Further, no need arises for passing a separate order in Contempt Petition No. 133 of 2012 in Civil Appeal No. 4498 of 2013 arising out of SLP (C) No. 2194 of 2011 and Contempt Petition No. 145 of 2012 in Civil Appeal No. 4492 of 2013 arising out of SLP (C) No. 4572 of 2011, as the said contempt petitions would be rendered infructuous by this judgment.