Government Of India vs Isro Drivers Association

CIVIL APPEAL NO(S). 7138 OF 2010

GOVERNMENT OF INDIA & ORS. .….APPELLANT(S)

VERSUS

ISRO DRIVERS ASSOCIATION ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. The instant appeal is directed against the order and judgment

dated 22nd September, 2008 passed by the Division Bench of the

High Court of Andhra Pradesh at Hyderabad holding the association

formed by the drivers based on job description as a ‘distinct

category’ laid down under Rule 5 (c) of Central Civil Services Signature Not Verified

(Recognition of Service Association) Rules, 1993 (hereinafter being Digitally signed by ASHA SUNDRIYAL Date: 2020.08.10 19:10:39 IST Reason: 1 referred to as “Rules 1993”) overruling the view expressed by the

Single Bench of the High Court dated 9th October, 2001.

2. The seminal facts in brief which are relevant for the present

purpose are that the respondent approached the High Court by

filing a writ petition seeking a declaration in treating their

association comprising of drivers operating in appellant no. 4­Shar

Centre a Unit of ISRO, Nellore District, Andhra Pradesh eligible to

participate in the verification process by according recognition and

rejection of their application by order dated 29 th June, 1999 on the

premise that association formed by a group of employees based on

job description will not qualify for recognition under Rules 1993 is

in contravention to Rule 5 (c) which is not sustainable in law.

3. Learned Single Judge of the High Court taking note of the

scheme of Rules 1993 and R5(c) & R10 in particular with later

Office Memorandum dated 22nd April, 1994 of the Government of

India, Ministry of Personnel P.G. & Pension read with decision of

the Department of Space dated 30th May, 1996 arrived at the

conclusion that the object of the scheme is to protect the common

interest of the employees of the establishment and the respondent

2 represents only the interests of drivers but the association must

have a collective voice of all the groups for the purpose of

recognition and after the expression ‘distinct category’ as referred to

under R5(c) being explicitly clarified by the Department of Personnel

and Training(DOPT) and Department of Space, any association

formed on the basis of job description or trade will not qualify to

accord recognition and later communication dated 22nd April, 1994

is supplementing the scheme of Rules 1993 for its proper

implementation in fulfilment of the object with which the scheme

has been framed and there appears no apparent error in the

decision of the authority rejecting their claim seeking recognition in

forming the association representing interest of the drivers based on

job description not being covered under the scheme of Rules 1993

dismissed the writ petition by its judgment and order dated 9 th

October, 2001 which came to be challenged by the respondent in

writ appeal.

4. While revisiting the indisputed facts on record, the Division

Bench was of the view that the term ‘distinct category’ defined

under Rule 5 (c) is not open to be clarified by the DOPT and with its

3 literal interpretation held the association of drivers as a ‘distinct

category’ and accordingly directed the appellants to examine

whether the respondent satisfy other pre­conditions of the scheme

and, thereafter, take a decision subjected to the verification process

for being accorded recognition under the Rules 1993. The

appellants being aggrieved by the order and judgment of the

Division Bench impugned dated 22nd September, 2008 came up in

appeal before us.

5. Mr. Vikramjeet Banerjee, learned Additional Solicitor General

submits that the expression ‘distinct category’ as referred to under

Rule 5 (c ) of the Rules 1993 has not been defined and that was the

reason the rule making authority visited the scheme and by its

clarificatory memo dated 22nd April, 1994, had entrusted this

responsibility to concerned Ministry/Department to take a decision

keeping in view the functional, administrative and organizational

set up. In furtherance thereof, the Department of Space held its

meeting in April 1994 with all the service associations and except

the respondent, other associations agreed that all the employees

covered by the Joint Consultative Machinery scheme of the

4 Department should be treated as single category and any

association/Union exclusively formed by certain group of employees

based on job description in the organization such as drivers,

stenographers, tradesmen, etc. would not qualify for recognition

under the Rules 1993. Taking note of the overall view of the

functional, administrative and organizational set up of the

Department, a letter was issued to the centres/units on 30 th May,

1996 to call for application of service association who wished to be

recognized under the scheme of Rules and it was clarified by the

Department that the term ‘distinct category’ as defined under Rule

5(c) will constitute all the employees in the particular region and

not a cluster of employees based on job or trade description like the

members of the respondent, all of whom were drivers, did not

constitute a ‘distinct category’ of government servants and were

rightly held not entitled for recognition.

6. Learned counsel further submits that while the rules are

framed under proviso to Article 309 read with clause 5 of Article

148 of the Constitution which indeed cannot be supplanted but the

administrative circulars could, nonetheless, be issued to

5 supplement the Rules and the unoccupied gaps of the Rules could

be filled, the expression ‘distinct category’ not being defined in the

Rules has been clarified by the Department of Personnel by its

clarificatory memo dated 22nd April, 1994 to promote harmonious

relations and securing cooperation between the Government and its

employees in matters of common concern and with the object of

promoting common service interest of its employees being the

primary object with which the scheme of Rules 1993 were framed.

7. Learned counsel further submits that once a clarification was

made of the expression ‘distinct category’ as referred to under Rule

5 (c ) by the rule making authority taking recourse to Rule 10 of

Rules 1993, the manner in which the expression ‘distinct category’

has been examined by the Division Bench of the High Court by

taking its literary meaning borrowed from the Dictionary is not

legally sustainable and deserves to be interfered by this Court.

8. Per contra, Mr. Shekhar G. Devasa, learned counsel for the

respondent, on the other hand, while supporting the finding

recorded in the impugned judgment submits that as long as the

respondent fulfil the pre­conditions for recognition as envisaged

6 under the scheme of Rules 1993, it was not open for the appellants

to take aid or assistance and place reliance on the Office

Memorandum dated 22nd April, 1994 or 30th May, 1996 to deny

their claim which has been conferred on them under the statutory

rules framed under proviso to Article 309 read with clause 5 of

Article 148 of the Constitution of India.

9. Learned counsel further submits that they had formed their

association with the object of common service interest of the

drivers employed in Unit ISRO and remain restricted to a ‘distinct

category’ of Government servants, i.e., drivers all of whom had a

common interest and were eligible to be members of their

association and representing 120 out of 150 drivers of ISRO Unit

and more than 35% of the membership required and nature of

duties discharged by the drivers in ISRO being distinct from the

duties discharged by employees working in other categories of

posts, were rightly held to be eligible for recognition under Rules

1993.

10. Learned counsel further submits that the test to determine a

‘distinct category of government servants’ was homogeneity and

7 commonality of interest which is being fulfilled by the association of

drivers which had a commonality of interest, and was a

homogenous group and entitled for recognition as an association

exclusively of drivers and this what has been examined by the

Division Bench of the High Court in the impugned judgment

extensively taking note of the scheme and in the absence of any

express prohibition under the scheme in having a number of

associations, it would justify claim of the first respondent of their

right to be recognized as a service association under the scheme of

Rules 1993 and needs no interference of this Court.

11. We have heard learned counsel for the parties and with their

assistance perused the material available on record.

12. The question that emerges is whether “the association formed

on the basis of job description such as drivers etc. which has been

classified in group ‘C’ constitute a ‘distinct category of Government

servants’ under Rule 5 (c) of Rules 1993”.

13. With the object of promoting harmonious relations and

securing cooperation between the Government and its employees in

the matters of common concern and to increase efficiency of public 8 service, the Government of India established in 1966 the Machinery

for Joint Consultation and Arbitration. The Joint Consultative

Machinery Scheme was introduced at the national level and at two

lower levels, namely, departmental and regional/office level. The

Joint Councils operate with the official members and staff

members. The staff members are represented by recognized service

association of Government servants belonging to Group C & Group

D and Group B (non­gazetted staff). Recognition of service

associations for the purpose of representation in the Joint Councils

of JCM is to be carried out in accordance with the Central Civil

Services (Recognition of Service Association) Rules, 1959 which

were superseded by the Rules 1993 by a notification dated 5 th

November, 1993.

14. The Department of Space under the Government of India

(Allocation of Business) Rules, 1961 formulated its own scheme of

JCM in 1977 with the object of promoting harmonious relations and

securing cooperation between the Department and its employees.

As per the scheme of JCM, all Group C & D employees and Group B

(non­gazetted staff) working in the Department of Space are eligible

9 for participation in the scheme. After the notification of the Rules

1993, the Department of Space decided to implement these rules in

respect of the JCM Scheme.

15. In exercise of the powers conferred by the proviso to Article

309 and clause (5) of Article 148 of the Constitution and in

supersession of the Central Civil Services (Recognition of Service

Associations) Rules, 1959, Rules 1993 have been framed. The rules

relevant for the purpose are extracted hereunder:­

“In exercise of the powers conferred by the proviso to article 309 and clause (5) of article 148 of the Constitution, after consultation with the Comptroller and Auditor General in relation to persons serving in the Indian Audit and Accounts Department, and in supersession of the Central Civil Services (Recognition of Service Associations) Rules, 1959 except as respects things done or omitted to be done before such supersession, the President hereby makes the following rules, namely:

1. ……..

2. ………

3. Application : These rules shall apply to Service Associations of all Government servants including civilian Government servants in the Defence Services but shall not apply to industrial employees of the Ministry of Railways and workers employed in Defence Installations of Ministry of Defence for whom separate Rules of Recognition exist.

4. ........

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5. Conditions for recognition of Service Associations:

A Service Association which fulfills the following conditions may be recognised by the Government, namely:­

(a) An application for recognition of Service Association has been made to the Government containing Memorandum of Association, Constitution, Bye­laws of the Association, Names of Office­Bearers, total membership and any other information as may be required by the Government;

b) the Service Association has been formed primarily with the object of promoting the common service interest of its members;

(c) membership of the Service Association has been restricted to a distinct category of Government servants having common interest, all such Government servants' being eligible for membership of the Service Association;

d) (i) The Association represents minimum 35 per cent of total number of a category of employees provided that where there is only one Association which commands more than 35 per cent membership, another Association with second highest membership, although less than 35 per cent may be recognised if it commands at least 15 per cent membership;

(ii) The membership of the Government servant shall be automatically discontinued on his ceasing to belong to such category;

11 (e) Government employees who are in service shall be members or office bearers of the service Association;

(f)­(h)…..

6­9 …..

10. Interpretation:

If any question arises as to the interpretation of any of the provisions of these rules or if there is any dispute relating to fulfilment of conditions for recognition it shall be referred to the Government, whose decision thereon shall be final.

(J.C. Mathur) Joint Secretary to the Govt of India”

16. These rules apply to service associations of all Government

servants referred to under Rule 3 to be formed primarily with an

object of promoting the common service interest of its members and

it may be noticed that the expression ‘distinct category’ referred to

under clause (c) of Rule 5 has not been defined under the scheme of

Rules 1993.

17. R5(d)(i) defines the membership of service association who can

be granted recognition has been restricted to a ‘distinct category of

Government servants’ having common service interest and

represents 35% of total number of category of employees with a 12 proviso that where there is only one association which commands

more than 35% membership, another association may be

recognized if it commands at least 15% membership and this clearly

indicates that the rule making authority intended to avoid plurality

of service associations with an object to promote the common

service interest of all the group of employees/Government servants.

18. Since certain doubts were raised by the persons for

implementation of the scheme of Rules 1993, Ministry of Personnel

P.G. & Pension(Department of Personnel & Training), Government

of India vide Office Memorandum dated 22 nd April, 1994 (Annexure

P­2) made a clarification and invited attention to all the

Ministries/Departments and so far as expression ‘distinct category’

as referred to under Rule 5(c) is concerned, the doubt was whether

the term ‘distinct category’ means group wise categorization i.e.

group ‘A’, ‘B’, ‘C’ and ‘D’ or cadre­wise categorization and what will

be the effect of 35% of minimum membership of employees as

referred to under 5(d) and the clarification was made by the DOPT

for implementation of the Rules 1993 in granting recognition to the

service association.

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19. Relevant part of the Office Memorandum dated 22 nd April,

1994 is as follows:­

“No. 2/2/94­JCA Government of India Ministry of Personnel P.G. & Pension (Department of Personnel & Training)

New Delhi the 22nd April 1994

OFFICE MEMORANDUM

Subject: Clarification regarding Central Civil Service (Recognition of Service Associations) Rule 1993

The undersigned is directed to invite attention of all Ministries/Departments to the Central Civil Services (Recognition of Service Associations) Rules, 1992, (hereinafter referred to as the Rules), which were notified in November, 1993 and to this Department's O.M. of even number dated 31st January 1994 and to say that a large number of references' are being received in this Department seeking clarification concerning the above­mentioned Recognition Rules. With a view to avoid further references and to expedite matters, the common points of doubt have been compiled and clarified below for information of all Ministries/ Departments.

POINTS OF DOUBT CLARIFICATION

1. Whether the Rules are applicable to No. The Rules are applicable casual labourers, extra­ only to those Central Departmental agents, Contingent Government employees to paid staff, industrial employees whom the CCS (Conduct) working in Telecom factories.

Rules, 1964 apply.

2. Whether a Federation or These Rules do not relate to a Confederation of Associations can Federation/Confederation of be recognised under the Rules. Associations and as such, they cannot be recognised under the

14 present Rules.

3. Whether the term “distinct BY a distinct category is category” used in Rule 5(c) meant an Association whose means group wise categorization members have a i.e. group ‘A’, ‘B’, ‘C’ or ‘D’ or commonality of interest and cadrewise categorization.

function as homogenous group. The responsibility for defining a distinct category” has been left to the concerned Ministry/Department. 4. Whether the first two No filment of the condition associations are to be recognized prescribed in Rule 5 (d) (i) even in neither of them fulfills _____ before. In other words, the conditions of having the one association, that is the minimum membership of 35%. first association, must have 35% membership between the second association with minimum of 15% membership can be recognized.

5. Whether Association are to be The Associations are to be recognized centrally or recognized centrally on all zone/circle/region wise. ministry/Department basis such associations may have their branches in the subordinate formulations.

6. Whether the minimum The condition of minimum membership prescribed in Rule membership as laid down in 5(d)(i) is for the entire Rule 5(d)(i) is for the entire Department or Department. In other words, zone/circle/regionwise etc. an Associations must have the minimum percentage of members amongst all employees in that distinct category in that Department.

7. Whether an Association having No fulfilled the conditions of Rules 5(d)

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(i) in the entire Department must also have the minimum membership as prescribed in Rule 5(d)(i) in each of its branches.

8. Whether vacant posts will be Percentage of membership is taken into account for the to be determined on the purpose of calculating minimum number of employees in each membership. distinct category and not on the number of posts.

9­12 …………

(BIR DATT) Director (JCA)”

(Emphasis supplied)

20. The Department of Space, taking assistance from the

clarification made by the DOPT vide OM dated 22 nd April, 1994 held

its meeting with all the service associations except the respondent

agreed that all the employees covered by the JCM scheme of the

Department should be treated as single category and any

association or Union exclusively formed by certain group of

employees based on job description in the organization such as

drivers, stenographers, tradesmen, etc. would not qualify for

recognition under the Rules 1993 in the Department of Space.

21. In furtherance thereof, Department of Space issued Office

Memorandum dated 30th May, 1996 to implement the scheme of

16 Rules 1993 for recognition of service association under the JCM

Scheme.

“3. Condition for recognition of Service Associations for Recognition

3. 1 A Service Association, which following conditions, will be considered for recognition under DOS JCM Scheme:

(a) An application for recognition of Service Association has been made to the Government containing Memorandum of Association, Constitution, Bye­laws of the Association, Names of Office­Bearers, total membership and any other information as may be required by the Government;

(b) The Service Association has been formed primarily with the object of promoting the common service interest of its members;

(c)(i) Membership of the Service Association has been restricted to a distinct/category of Government servants having common interest, all such Government servants being eligible for membership of the Service Association;

(ii) So far as Department of space is concerned, all groups of employees covered under the existing JCM scheme shall be treated as a single category in each region.

(d) Only Government employees who are in service shall be members or office bearers of the Service Association;

….”

3.2 An Association to be recognised should have a minimum representation of 351 of the total number of eligible employees in the region, provided that where there is only one Association which commands more than 35% membership, another Association with second highest membership, although less than 35% may be recognised, if it commands at least 15% membership. Percentage of membership has to be determined on the number of eligible employees in the region and not on the number of posts.”

17

22. The application submitted by the first respondent seeking

recognition of association based on job description of drivers came

to be rejected by the 4th appellant by communication dated 21st

June, 1999 on the premise that the association has been

exclusively formed by a group of employees comprising of drivers on

job description would not qualify for recognition under Rules 1993.

23. As per the scheme of Rules 1993, it is applicable to such

Government servants to whom the Central Civil Services (Conduct)

Rules, 1964 are applicable. The Department of Space framed its

own disciplinary rules regarding alleged misconduct being

committed by the employees for holding disciplinary inquiries under

proviso to Article 309 of the Constitution, namely, the Department

of Space (Classification, Control & Appeal) Rules, 1976 was further

amended in the year 2013. Annexed thereto, schedule has been

appended to Rule 30 prescribing the classification of Civil Posts

under the Department of Space broadly in four Groups ‘A’, ‘B’, ‘C’

and ‘D’. The employees who are working in SDSC SHAR i.e.

technical attendants, nursing attendants, technicians, office

18 attendants, gardeners, safaiwalas, security guards, canteen

attendants, radiographers, pharmacists, lab technicians, nurses,

agricultural supervisors, drivers, stenographers etc. are falling in

different groups based on their pay scales and job description etc.

24. That apart, two different set of recruitment rules have been

placed for perusal. One set of recruitment rules have been framed

by Department of Space for drivers in exercise of powers conferred

under proviso to Article 309 of the Constitution called as

Department of Space (Staff Car Drivers/Light Vehicle Drivers)

Recruitment Rules, 2001 classified drivers in Group ‘C’ post. For

the other category of posts of Assistant, Senior Project Assistant,

Personnel Assistant and Private Secretary, their recruitment is

regulated by the Rules called the Department of Space (Group ‘B’

Posts) Recruitment Rules, 2009 and with partial modification, the

method of recruitment and designation to the post of Assistant

(Group ‘B’ non­gazetted) called the Department of Space (Assistant)

Recruitment Rules, 2016. At some stages, for other purposes,

categorization of posts have been made indicating ministerial, non­

ministerial, industrial and non­industrial, tenure posts but broadly

19 under the scheme of recruitment rules, the service conditions of

employees have been broadly classified in four groups A,B,C & D of

which a reference has been made supra.

25. In compliance of the scheme of Rules, applications were

invited from various associations in SDSC, SHAR for according

recognition. It has come on record that four associations/Unions

who represent combination of group of employees and who fulfil the

requirement to participate in the verification process for recognition

under the rules submitted their applications:­

1. SHAR Employees Association (SEA)

2. SHAR Employees Trade Union (SETU)

3. SHAR Employees Union (SEU)

4. SHAR Antariksh Staff Association (SASA)

26. Out of the above four Associations/Unions, three participated

in the process of verification held on 10 th January, 2002. The

results of verification of membership in SHAR Centre is as follows:­

1. Total number of employees eligible to participate in the verification process in SHAR Centre 1207

2. Number of employees who actually participate in the verification process 1105 20

27. The breakup of the numbers of letters of Authorization (i.e.

number of employees who subscribed for each association) received

on 10th January, 2002 as a result of the verification of membership

is given below :­

1. SHAR Employees Association (SEA) 651 2. SHAR Employees Trade Union (SETU) 327

3. SHAR Antariksh Staff Association (SASA) 124

28. As per the scheme of Rules 1993, service associations – SEA

and SETU got the required membership and accordingly recognition

was accorded.

29. The primary object of forming service association is to promote

the common service interest of its members and the membership of

the service association remain restricted to such Government

servants having common interest and all group of employees

covered under the existing JCM scheme were categorized as a

‘distinct category’ for forming their association. At the same time, if

association/Union is being exclusively permitted to be formed by

21 the group of employees based on job description in the organization

such as drivers, stenographers, etc. apart from various category of

employees who are working in SDSC SHAR i.e. technical

attendants, nursing attendants, technicians, office attendants,

radiographers, etc. for the purpose of recognition under the scheme

of Rules 1993 treating them to be a ‘distinct category’ as considered

by the Division Bench in the impugned judgment, there is a greater

probability that the employees of each of the above mentioned

trades/jobs would form into association in each of the

centres/units qualifying themselves into ‘distinct category’ and seek

representation in JCM that would not only defeat the purpose of

JCM but would lead to groupism obstructing the working

atmosphere and neither joint consultation nor consensus would

prevail and that will jeopardize the service interest of the

government servants.

30. It has come on record that presently the strength of the staff

working in various groups is over 16,000. In the given situation, if

any group of employees based on their job description is permitted

to form an association under the guise of ‘distinct category’ as

22 prayed, it will indeed have an adverse consequential effect which

would never be the intention of the rule making authority while

framing the scheme of Rules 1993. Our view is being strengthened

noticing Rule 5 (d) which lays down that subsequent association

with less than 35% of total number of categories can be recognized

if it commands at least 15% of the membership. The respondent

confining itself to drivers as members cannot command 15% of the

total number of employees covered by the scheme in SDSC SHAR as

the sanctioned strength of the drivers (around 160) is less than 15%

of the members under the scheme, as a distinct category

considering the Group of employees (A,B,C & D) respectively.

31. The Latin maxim ‘noscitur a socilis’ states this contextual

principle, whereby a word or phrase is not to be construed as if it

stood alone but in the light of its surroundings – Bennion on

Statutory Interpretation, Fifth Edition A­G Prince Ernest Augustus

of Hanover [1957] AC 436, Viscount Simonds has opined that “a

word or phrase in an enactment must always be construed in the

light of the surrounding text. “…words and particular general

23 words, cannot be read in isolation, their colour and their content

are derived from their context.”

32. Adverting to the facts of the instant case, the scheme of Rules

1993 clearly manifests that the primary object of the scheme is to

promote the common service interest of its members and service

association which intends to accord recognition must represent

minimum 35% of the total category of employees with a rider that

where there is only one association which commands more than

35% membership and another association with second highest

membership must be recognized if it commands at least 15%

membership. The intention appears to be to avoid plurality of

associations which indeed may not be in the overall interest of the

Government servants in forming service association on their job

description. In this context, the expression ‘distinct category of

government servants’ referred under Rule 5 (c) with its due

emphasis in furtherance of the clarification which has been made

by the rule making authority is, in fact, supplementing the scheme

of rules for its effective and proper implementation which is

permissible under the law unless held to the contrary and that was

24 never the case of the respondent at any stage in grouping the

classification of posts in group ‘A’, ‘B’, ‘C’ and ‘D’ as a ‘distinct

category’, is in contravention to Rule 5 (c ) of Rules 1993 and any

further sub­classification of posts based on job description is not

permissible under the recruitment and conduct rules if permitted

under the guise of expression ‘distinct category’ to form service

association, it would defeat the purpose and object with which the

scheme of Rules 1993 have been framed according recognition to

service association which has been primarily formed with an object

of promoting the common service interests of its members at large

and the literal interpretation in isolation of the term ‘distinct

category’ made by the Division Bench of the High Court in the

impugned judgment granting permission to each group of

employees based on job description/trade to claim recognition and

form their service association would not only defeat the primary

object of the scheme of Rules 1993 but the purpose as well with

which the Joint Consultative Machinery has been formed to watch

albeit the common service interest of its members/Government

servants.

25

33. On the overall analysis, the appeal deserves to succeed. The

impugned judgment passed by the Division Bench of the High Court

dated 22nd September, 2008 is unsustainable and accordingly set

aside.

34. The appeal is allowed. No costs.

35. Pending application(s), if any, stand disposed of.

……………………………………J. (SANJAY KISHAN KAUL)

…………………………………….J. (AJAY RASTOGI)

……………………………………J. (ANIRUDDHA BOSE) NEW DELHI AUGUST 10, 2020

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