TAMIL NADU EDUCATION DEPARTMENT MINISTERIAL & GENERAL SUBORDINATE SERVICE ASSOCIATION v. STATE OF TAMIL NADU & ANR (2)

Citation: [1980] 1 S.C.R. 1026

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK

Case summary

32 of the constitution involve identical, though familiar, constitutional questions based on Arts.

Judgment text

TAMIL NADU EDUCATION DEPARTMENT MINISTERIAL & GENERAL SUBORDINATE SERVICE ASSOCIATION v. STATE OF TAMIL NADU & ANR. October 23, 1979 [V. R. KRISHNA IYER AND R. S. PATHAK, JJ. ] Civil Service--lntegration of two services-Governrnent revising policy- G. O. issued integrating staff of 'A' and 'B' Tflings of service, fixing ra1io for pronzotion & principle of computation of service in detennining comn1on . ~l'niority- Whether pennisslble and valid. The State of Tamil Nadu had schools at various le\"els, primary, JJ1iddle and high which were run by the public sector consisting of Pancbayats, District Boards and the. Government. Progressively, Panchayat schools were absorbed by District Boards and eventually those managed by the latter were taken over by the Government. Ini 1970, the State Government took a major policydec:isions that all District Board schoo]s be taken over with effect from 1s-t April. 1970. By G. O. M. S. No.

761 dated 16th May, 1970 the teaching and non-teaching personnel were, absorbed as a separate service in the Education Department nani. ed the Tamil Nadu Educational Subordinate Service. The ministerial service, which related to the non-ieaching staff, also was kept seperate. The dfrecl consequence of the· maintenance of two separate services was that white promotional prospects were available to Government employees, they were not open to lhe former District Board servants on their absorption into Government service. This led to agitation and representation. Government considered afresh the question, and by G. O.

1786 dated October 17, 1974 reorganised the service, to provide that all Government Schools' servants be called the 'A' Wing and the staff of tho former District Board Schools be referred 'to as 'B' \Ving and de"cided that as complete integration of the Wings \Vas administratively difficult, they be kept separate as two ~lings of the Tamil Nadu Educational Subordinate Service and the Tan1il Nadu EducatiOnal Service. The personnel of the 'B~ \Ving represented to the Government that ever since their absorption as Govemmnt servants with effect from April 1, 1970 they were not having enough promotional avenues. Government again examined the matter, decided to re-integrate these Wings and for this purpose passed G. O. No. 1968 dated November 2, 1978 which provided for fixing the ratio between the two Wings in the matter of promotion and also the principle for computation of ser,·ice in determining the common seniority.

In the· \vrit petitions to this Court, the petitioners contended that there was no rational formula for integration of the two separate \Vings; the methods of recruitment, qualification and seniority provided for the two wings being different, their integration into a common service cadre and equalisation of their service condi\ions was violative of Articles 14 and 16. The 'B' Wing personnel having been absorbed into Government service with effect from April 1, 1970 EDUCATION DEPARTJ\IENT ASSN. V. TAMIL NADU 1027 i. \. was not perniissiblc to grant seniority from a date anterior to thdr eligibility . as Government servants. The State Government however contended that the decision for integration ·Of the lwo wings was taken after examining the matter in gceat detail and :taking into account the number of personnel of different categories in both th ~ings and their promotional opportunities. ·'B Dismis~ ing the petitions, HELD : l.

The smdents who frc coached for examinations, the syllabu;, for such coimcs and the nature of the teaching are virtually identical in the t'vo . sets of schoois and the qualifications of the t. eacbers also resemble. In this background, the Sta te probably assumed as inadmissible of contrary :lrgument th:lt the ·qualit'f of the service, the nature of the qualifications for employment anJ other feature5 were ·de fac:o identical and consequentially service in District Board Schools and service in Government Schools could be legitimately equated for purposes of reckoning seniority. Mathematical precision in equation is a vain chase. [1034 B. C) 2. In Service Jurisprudence integration is a complicated administrative problem where, in doing broad justice> to many, some bruise to· a few cannot be ruled out. Some play in the joint~, even some wobbling, must be left to Government with.

out fussy forensic monitoring, since the administration has been entrusted by the Constitution to the Executive, not to thei Comt. All life, including administrative life, invol\'es experiment, trfal and error, but wi1hin the leading strings of fundamental rights, and, absent unconstitutional 'excesses', judicial correction is not right. Under Art. 32, this Court is the constitutional ser.. tincl, not the national ombudsman. [1031 A-B] Jn the instant case even if the quota rule is · an administrative mts being called the 'A' Wing and the staff of the former District Board Schools being referred to as 'B' Wing. Jn the considered view of the Government, complete integration. of 'A' and 'B' Wings was administratively difficult and so they were kept separate as two wings of the Tamil Nadu Educationai Subordinate Service and the Tamil Nadu Educ~tional Service.

Certain ~ amelioratqry measures were taken in opening up better' prospects and avenues of promotion for the new arrivals from the District Board Schools. Presumably, this half-way house arrangement was hardly a sufficient appeasement, and Government was again agitated over the question. The pressure of social justice brought tn bear on Government through many channels including the houses of the legislature, persuaded the State to overhaul the entire pattern of integration and, 1030 SUPREME COUIJ. T REPORTS [1980] 1 S. ,C. R•. fitment of the two win1:s in a common seniority list. Government ' ratiocinated on the question thus : "Ever since raking.

over the 'B' wing personnel as· full fledged Govermnent servants from 1-4-70 it was being repeatedly represented to Govermnent that it would not be equitable to deny them ~or ever the advantages available to their counterparts in the 'A' Wing when persons of both the wings are doing identical work and that the Government should consider merging both the wings on some rational basis. In both the Houses of the State Legislature also many honourable members have been repeatedly urging the Government to take quick and pragmatic decision on this long pending issue. After examining the matter in great detail taking into account the number of personnel of different categories in both the wings and the promotional opportunities for them, the Government have proposed to adopt a formula to integrate the two wings and attempt to equalise their service conditions to the . extent possible. The Tamil Nadu Public Service Commission has, given its consent to these proposal~.

The Government accordingly now direct, in partial modification of the orders in the G. 0. Ms. referred to above, that the staff of 'A' and 'B' Wings be integrated with immediate effect following the procedure indicated below :" (emphasis added} Then followed two important decisions settling the kismat of the two Wings at the teaching and the non-teaching staff levels. These decisions are castigated in the writ petitions as capricious, arbitrary and traumatic by the 'A' Wing, i. e. the teaching and non-teaching staff of the Government Schools. These two decisions are, briefly, (1} fixing the ratio between the two wings in the matter of promotion, and (2) fixing the principle for computation of service in determining com-~ mon seniority. We are concerned only with non-gazetted officers of secondary schools in. these writ petitions.

With regard to them, 1alifications laid down under the Madras Educational Rules (the 111le relating to the appointment of Teachers in schools mainmined by local bodies). Under the Madras Educational Rules one must possess a degree in B. A. or B. Sc. , with B. T. or B. Ed. , as in the case of ministerial service, the teachers also have to undergo a period of probation for a period of 2 years. Only after the satisfactory completion of probation for a period of 2 years, the,Y were regularised. Their increment is sanctioned only after such regularisation. In 'B' Wing s€hools a Headmaster or Headmistress must pass the following tests... If a candidate who has been promoted as a Headmaster or Head~ mistress fails in this subject. he or she will have to face reversion. " The students who are coached for examinations, the syllabus for such courses and the nature of the teaching are virtually identical in the two sets of schools and the qualigcations of the teachers also resemble.

In this background, the State probably assumed as in-. admissible of contrary argument that the quality of the service, th. e nature of the qualifications for employment and other features were de facto identical and consequentially service in District Board Schools and service in Government Schools could be legitimately equated for purposes of reckoning seniority. In. this imperfect world mathematical precision in equation is a vain chase. Decisions were cited before us by counsel for the respondents to show that this was not an exercise in novelty and even private rnlfoge experience has been considered relevant when Government has takeir over such colleges. On the contrary, counsel for the petitioners pressed before us that when Panchayat schools were dovetailed int°' the Education Department of the District Boards the teachers and the non-teaching staff thereunde. r were given no credit.

for panchayat service ant: seniority was reckoned only from the date of entry into District Board service. Why should a different rule be adopted when District Board teachers and non-teaching staff are brought into Government service ? Even the 'Fundamental Rules' were cited to shaw that ordinarily service prior to entry into Government service is discarded. Then why violate this norm to please the numbers ? This is the question put to G<1verqment for faulting the G. O. No. 1968. Aware of our jurisdictional ! imitation we do not agree that the court can analyse such minutiae to fault the policy and quash the order of Government, i. e. G. O. No. 1968. For argument's sake, Jet us assume that there is a volte face on the part ot the Government in shifting its stand in the matter of computation of seniarity with reference tOt length of service. Surely, policy is not static but is dynamic lllld what weighed with the Government when panchayat .

institutions wern amalgamated with the District Board institutions might have liceμ given up in the light of experience or changed circumstances. What was regarded as administratively impractical might, on later thougbt and activist reconsideration. turn out to be. feasible and fair. The court cannot strike down a G. O. , or a policy merely because there is a variation or contradiction. Life is sometimes a contradiction and even EDUCATION DEPARTMENT ASSN. V. TAMIL NADU (Krishna Iyer, J. )J 035 consistency is not ~\ways a virtue. What is important is to know whether mala fities vitiates or irrational and extraneous factor fouls. It is impossible to maintain that the length of service as District ;Board employees is irrational as a criterion. Let us assume for argument's sake that the mode, of selection by the District Boards is not as good as by the Public Service Commission.

Even so it is difficult to dislodge the Government's position that the teachers with mostly the same qualificotions, discharging similar functions and training similar students for similar examinations cannot be equated from a pragmati~ ai1gle without being condemned as guilty ofl arbitrariness. Sri Govind Swaminathan drove home the point that in some cases even a few hundred 'A' wing members have been passed over by some one in the 'E' wing far junior to them. Once the principle is found to be rational ihe fact that a few freak instances of harcfship may nrise on eilher side cannot be a ground to invalidate the order or the policy. Every cmise claims a martyr and however unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where, absent ar. bitrariness and irrationality, the court has to adopt a hands-off policy.

The 'B' wing members complain that they have really suffered by being denied what is due to them on account of length of service all these years after 1970. The boot is in! the other leg, they lament. Probably. , the injmtice of the past, when suddenly set right by the equity of the present, puts on a molested mien and the beneficiaries of the status quo cry for help agninst injustice to them. The law, a~ an instrument of social justice, takes a longer look to r. cutralise the sins ol history. Be that as it inay, judicial power cannot rush in where even administrative feats fea. r to tread. We sec the force of the petitioners grievance and realise that art alternative policy may well be fabricated. That is a matter for the State and not for the court. We hold that the impugned G. O. cannot be voided as violative of Articles 14 and 16, and, therefore, dismiss the petitions. The parties will bear their respective costs. N. V. K. Petitions dismissed.