TMI Blog1981 (9) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... rt by its judgment, on a writ petition filed by Respondents I to S, who were STIs of the State of Bombay and passed the prescribed departmental examination for promotion as STOs Gr. III, has struck down the various resolutions and orders passed by the State Government from time to time relating to integration of services of these officers under sub-s. (7) of s. 115 of the Act, in compliance with the directives of the Central Government issued under sub-s. (5) of s. 115 of the Act. The main question in the appeal is whether the High Court was right in doing so. To appreciate the points involved, it is necessary to set out a few facts. On November 16, 1957, the State Government by its Resolution purported to direct that the ASTOs from Madhya Pradesh and Hyderabad should continue in their respective pay-scales until such of them were not appointed as STOs Gr. III under r. 7 of the Allocated Government Servants (Absorption, seniority, Pay and Allowances) Rules, 1957. Notes 3 and 6 appended to the said Resolution provided that for purposes of promotion, their inter se seniority shall be fixed on the basis of their service as STIs being counted together with their service as ASTOs in Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Between November 1, 1956 and August 8, 1960, promotions to the post of STO, Gr. III were made on the basis of separate departmental examinations held in accordance with the rules framed by the former State Governments concerned. Upto and until August 8, 1960, departmental examinations for promotion to the post of STOs were conducted under the three different sets of rules applicable to the former States of Bombay, Madhya Pradesh and Hyderabad. From August 8, 1960, the Bombay Departmental Examination Rules for STOs were made applicable to the ASTOs allocated from Madhya Pradesh and Hyderabad as well in as much as the Bombay Sales Tax Act, 1959 was made applicable to the whole of the State and the C.P. and Berar Sales Tax Act, 1947 and the Hyderabad General Sales Tax Act, 1950, were repealed. The ASTOs from Vidarbha and Marathwada regions of Madhya Pradesh and Hyderabad were called upon to appear at the examination prescribed for the STOs of the old Bombay region. Accordingly, promotions to the post of STO Gr. III were regulated under the Bombay Departmental Examination Rules and in consequence some of the ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abad Slate, and is, therefore, pleased to order that the officers and staff of the Sales Tax Department of the former Hyderabad State, who were otherwise found deserving of confirmation on the basis of their confi- dential records, efficiency and seniority may be confirmed in their respective posts held prior to 1st November 1956 against clear vacancies in terms-of General Administration Department Circular No. 97 G.A.D. 12-SR-55 dated 10th September 1956 issued by the Ex-Hyderabad Government.. Such confirmed personnel should, however, not be promoted to higher posts until such times as they complete the prescribed Departmental Examination. (emphasis supplied) Similarly, on representations made by the ex-Madhya Pradesh ASTOs, the State Government by its Memorandum dated November 21 ,1964, ordered: Recruitment Rules for the Sales Tax officers prescribed for the old Bombay State appearing in Government Resolution Finance Department No. STO-1654 dated 28th July 1954 as amended by the Government Resolution, Finance Department No. STE-1159/Ol81/61- XIII dated the 29th January 1961 lays down that a Sales Tax Inspector is not eligible for promotion of Sales Tax Officers without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his examination is a prerequisite for consideration for promotion to the post of Sales Tax officer. The Government of India have normally been accord- ing approval under the S. R. Act for prescribing such departmental tests subject to the following conditions:- 1. Additional time which may be double that of the time that is ordinarily permissible for passing such tests be allowed to the employees from the integrating units in cases where tests of higher standard are prescribed, or where tests were not prescribed under the parent State Governments. 2. Employees of the integrating unit should be promoted subject to their passing the test within the additional time referred to at item (i) above in other words promotions should not be withheld merely because the employees have not passed a Departmental test, and 3. Government Servants of the age of 45 years or more should be exempted from passing departmental test and when exempted, they should be eligible for pro motion equally with one who has passed the tests. I am to request that the State Government may examine the matter on the above lines and forward to the Government of India for approval their reconsidered proposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n isolated category and to place The same above Sales Tax Inspec- tors was just and fair. The Government of India also considered the alterations made by the State Government in the rules relating to the passing of a Departmental Examination before a Sales Tax Inspector could be promoted to the post of a Sales Tax officer Grade III. I say that different rules were prevalent in the different integrating areas regulating departmental promotions. The State Govt. decided that until unified recruitment rules were framed promotions might be given to all without their having to pass an examination i.e. without any discrimination. The Government of India who have examined the matter in consultation with the State Advisory Committee was of the view that the deletion of departmental examination altogether was fair and just because by doing so and discrimination between employees coming from different integrating areas was removed. (emphasis added) It would appear that till 1973 there were no unified rules by which ASTOs from Madhya Pradesh and Hyderabad and STIs from Bombay were governed. The Maharashtra Sales Tax officers' Rules, 1973, framed by the State Government in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermining their inter se seniority. Prior to the reoganisation of the States, a Conference of the Chief Secretaries of the States that were to be affected by the reorganisation was held at Delhi on May 18 and 19, 1956 for the purpose of the formulation of the principles upon which integration of services was to be effected. The Government of India by their letter dated April 3, 1957 informed the State Government that the work of integration of services should be dealt with by them in the light of the general principles already settled at the Chief Secretaries Conference. This has been construed to be a valid delegation of powers to prepare the preliminary and final gradation lists under the direction and with the sanction of the Central Government. The Government of India by its Circular dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States' representatives that it would not be appropriate to provide any protection in the matter of departmental promotion. This Circular has been interpreted as a prior approval of the Central Government in terms of the proviso to sub-s. (7) of s. 115 of the Act in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut where, as here, in the matter of equation of posts, the Central Government had properly taken into account all the four principles decided upon at the Chief Secretaries Conference, the decision cannot be assailed at all. In the present case, not only the Central Government had laid down the principles for integration, but also considered the representations and passed the final orders and the provisional gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government. In accordance with the principles settled at the Chief Secretaries Conference, the Government of India, in consolation with the Central Advisory Committee, directed that the posts of ASTOs in the former States of Madhya Pradesh and Hyderabad should be continued in an isolated category, there being no corresponding post in the successor State of Bombay with which they could be equated. There were 19 ASTOs in the pay-scale of Rs. l50-10-200- EB-15-250 from Madhya Pradesh and 23 ASTOs in the pay-scale of ₹ 170-8 1/2-225-EB-13-320 from Hyderabad allocated to the new State of Bombay. In the former State of Bombay there was no similarly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ex.2 (Memorandum of the Government of Maharashtra, Finance Department. dated November 21, 1964) the difference is not much. We enquired about the nature of work they are doing today and we are told on instructions by the State's counsel that they are doing the work that the Sales Tax Inspectors are doing. (emphasis added) All that we need say is that the High Court, if we may say so, without meaning any disrespect, has viewed the question from a wrong perspective. The remaining question whether the State Government by its Resolution dated June 13, 1964 and Memorandum dated November 21, 1964, effected a change of recruitment rules by an executive order, in the conditions of service of the ASTOs from Madhya Pradesh and Hyderabad, contrary to the Proviso to sub-s. (5) of s. 115 of the Act; and if so, whether such a change in the conditions of service could be brought about without framing a rule under the Proviso to Art. 309 of the Constitution. In our opinion, the question does not really arise. There can be no dispute with the proposition that a rule framed under the Proviso to Art. 309 of the Constitution cannot be modified by an executive order. But the question is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for promotion of STIs as STO Gr. III. Further, the amendment deleted r. 3 which laid down a rule of preference. In the former States of Madhya Pradesh and Hyderabad, neither such condition nor any rule of preference was there. Under r. 1 of the Rules for Departmental Examination framed by the former State Government of Madhya Pradesh, ASTOs who were promoted as STOs were required to pass the departmental examination within two years from the date of such promotion. Rule 4 provided that they would not be confirmed till they pass the said examination and on their failure to do so, they would be reverted to the substantive post of ASTOs. Similarly, under r. 2(c) of the Rules framed by the former Hyderabad State, ASTOs who were prompted as STOs were required to pass the departmental examination within three years from the date of commencement of the rules failing which their grade increment was to be withheld till they pass such examination. Rule 2 (d) provided that STOs Cl. 1 and II who had not been confirmed in their respective posts, were required to pass the said examination within the said period failing which they were to be reverted to their substantive posts. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controvertible fact that the departmental examination prescribed by the former State Governments of Madhya Pradesh and Hyderabad had not been held after August 8, 1960 i.e. for the last 20 years. Merely because the C.P. and Berar Sales Tax Act, 1947 and the Hyderabad General Sales Tax Act, 1950 stood repealed with effect from January 1, 1960, that hardly furnished a ground for not holding the examination. The State Government, in their affidavit before the High Court, tried to justify their action that the subjects under the ex- Madhya Pradesh and Hyderabad Rules had become obsolete and, therefore, it was felt that no useful purpose would be served in holding these examinations. This was no justification at all, for even after the Bombay Sales Tax Act, 1959 had been extended throughout the State with effect from January 1, 1960, all pending assessments pertaining to the Vidarbha and Marathwada regions of the former States of Madhya Pradesh and Hyderabad had to be completed in accordance with the repealed Acts. In this context, the High Court observed that it examined the subjects prescribed for the three departmental examinations of Bombay, Madhya Pradesh and Hyderabad and found th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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