@JUDGMENTTAG-ORDER
1. The Audit and Accounts Department of the State of West Bengal consists of three services, namely, the West Bengal Higher Audit and Accounts Service (Higher Service), the West Bengal Audit and Accounts Service (State Service) and the West Bengal Junior Audit and Accounts Service (Junior Service). The members of the Junior Service sought a mandamus form the Calcutta High Court to the effect that the Junior Service and the State Service be merged and reconstituted as single service. A learned Single Judge of the High court allowed the writ petition and directed the merger of the two services with effect from 27/3/1971. The learned Judge further directed that after the unification of the two services, the seniority of the unified cadre be fixed with effect from 27/3/1971. Two appeals, one by the State of West Bengal and the other by the Association of the officers were filed against the judgment of the learned Single Judge. A division bench of the High court dismissed both the appeals and upheld the judgment of the learned Single Judge. These appeals by way of special leave are against the judgments of the High court.
2. We have heard learned counsel for the parties: We have been taken through the judgment of the learned Single Judge, the division bench and other relevant material on the record. Learned Single Judge of the High court referred to the First Pay Commission Report wherein according to him the Pay Commission had recommended merger of the six services which were almost similarly situated as the two services before him. The learned Judge further noticed that in the West Bengal Food and Supplies Department and also in the West Bengal National Employment Department there were mergers of services under similar circumstances. Apart from that the learned Judge relied upon interdepartmental correspondence and came to the conclusion that the writ petitioners were entitled to the merger of the State Service and the Junior Service into one unified cadre.
3. During the pendency of the appeal the division bench directed the State of West Bengal to file an affidavit clarifying its position. secretary to Government, Finance Department, filed an affidavit dated 7/11/1990 wherein he stated that the State government had fully examined the question of merger of the two services and had taken a conscious decision to the effect that such merger was not in the interest of the administration. We have been taken through the affidavit wherein elaborate reasons have been given for rejecting the demand for merger of the two services. It is not open to the High court to go into the merits of the reasoning of the State Government. After going through the reasons given in the affidavit we are of the view that each one of the reasons given therein is cogent and the High court was wholly unjustified in not taking the same into consideration. The division bench became wholly oblivious of the affidavit filed by the Finance secretary and did not even notice the same in its judgment.
4. Recruitment to the posts in the three services in the Audit and Accounts Department is regulated by the statutory rules framed under Article 309 of the Constitution of India. Three independent services have been constituted and recognised by the statutory rules as separate and independent services. Neither the learned Single Judge nor the division bench of the High court referred to the statutory rules. When the three services are constituted under the statutory service rules, we fail to understand on what basis the High court has directed the merger of the two statutory services without even referring to the rules. The merger of the two services directed by the High court is patently illegal and in violation of the statutory rules.
5. This court has repeatedly held that merger of more than one cadre or division of one cadre into two or more cadres is an executive act and is entirely within the administrative sphere of the State government. This court in Reserve Bank of India v. N.C. Paliwal held as under:
"The integration of different cadres into one cadre cannot be said to involve any violation of the equality clause. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The integration of non-clerical with clerical service sought to be effectuated by the Combined Seniority Scheme cannot, in the circumstances, be assailed as violative of the principle of quality."
6. Again in Inder Singh v. Vyas Muni Mishra, this court observed as under:
"The High court exceeded its jurisdiction in directing the merger of the posts of Ganna Gram Sewaks and Cane Supervisors. The merger or bifurcation of a cadre is an executive act. It is for the State to consider whether two groups of persons working under two distinct posts perform the same kind of duties or not, and whether in implementing the Directive Principles, as contained in Article 39(d) of the Constitution, it is necessary to merge the two posts into one cadre post."
7. We are, therefore, of the view that the High court fell into patent error in directing the unification of the two cadres. We allow the appeals and set aside the judgments of the learned Single Judge and of the division bench and dismiss the writ petition filed by the respondents in the High court with costs. We quantify the costs as Rs. 11,000.00.
