M. D. Shukla & Ors Vs. State of
Gujarat & Ors [1970] INSC 16 (6 February 1970)
06/02/1970 SHAH, J.C.
SHAH, J.C.
HEGDE, K.S.
CITATION: 1971 AIR 117 1970 SCR (3) 515 1970
SCC (1) 419
CITATOR INFO :
R 1977 SC 747 (6)
ACT:
States Reorganisation Act 37 of 1956 ss. 115,
116, 117Bombay Re-organisation Act 11 of 1960, ss. 81, 82 & 83Permanent
employees of Saurashtra and Kutch States allotted to Bombay State after passing
of Act 37 of 1956 but posted in districts of Saurashtra and Kutch-Allotted to
Gujarat State after passing of Act 11 of 1960-Transferred to
Secretariat--Government order regularising their services in Secretariat and
fixing their pay and seniority--Regularisation whether amounted to 'absorption'
within meaning of Bombay Allocated Government Servants' (Absorption. Seniority,
Pay and Allowances) Rules,, 1957,-R. 138 of Bombay Civil Services
Classification and Recruitment Rules, 1939 as amended' in 1957 whether violated
by such regularisation.
HEADNOTE:
Prior to November 1, 1956 the appellants were
holding permanent posts in the ministerial service of the Secretariats of the
Part B State of Saurashtra and the Part C State of Kutch. By virtue of s. 8 of
the States Reorganisation Act 37 of 1956 the new State of Bombay which included
the territories of the States of Saurashtra and Kutch was formed. Under s.
115(1) of the Act the appellants were allotted to serve in connection with the
affairs of the new State of Bombay. BY the proviso to, s. 115(7) it was
provided that 'conditions of service applicable immediately before the
appointed day to the case of any person allotted to another State shall not be
varied to his disadvantage except with the previous approval of the Central
Government'. Section 116 provided for the continuance of officers in equivalent
posts. By s. 117 power was conferred upon the Central Government to give
directions to State Governments for the purposes of ss. 114, 115 and 116. The
Act authorised the Central Government to establish one or more Advisory
Committees to advise the Government on the division and integration of the
services in the new States and for ensuring fair and equitable treatment to all
persons affected by the provisions of s. 115 and for proper consideration of
any representation made by those persons.
A large majority of the members of the
ministerial branch of the Secretariats of the State of Saurashtra and Kutch
were unwilling to be posted in the Secretariat of the new State of Bombay. A
large majority out of them including the appellants were accordingly posted in
the districts of theformer States of Saurashtra and Kutch. Under the Bombay
Reorganisation Act 11 of 1960 the States of Gujarat and Maharashtra were carved
out of the territory of the new State of Bombay. Sections 81, 82 and 83 of the
1960 Act were substantially the same as Ss. 115, 116 and 117 of the 1956 Act.
The services of the appellants were under s. 81 of the Act allotted to the
newly constituted State of Gujarat. The State of Gujarat transferred the
appellants from the districts to the Secretariat. After consulting the Public
Service Commission it issued on August 19, 1966 an order
"regularising" the services of the appellants and fixing their pay
and seniority. The officers of the Secretariat who before the, passing of the
said order constituted the ministerial service filed a petition in the High
Court challenging its validity. The High Court allowed the petition mainly on
two grounds, namely : (i) that the appellants were not absorbed-in the
ministerial services of the Secretariat within the meaning 516 of the Bombay
Allocated Servants' (Absorption, Seniority, Pay and Allowances) Rules, 1957;
(ii) that r. 138 of the Bombay Civil Services Classification and Recruitment
Rules, 1939 as amended in 1957 allowed recruitment to the Ministerial Staff of
the Secretariat by nomination after an examination or by promotion from the
Lower Division and it was not open to the Government to adopt any other method.
The High Court's ,,decision was challenged in
appeal before this Court. The Court noted that no equivalence had been
established between the posts in the Secretariats of the States of Saurashtra
and Kutch and the posts in the new State of Bombay or later in Gujarat and that
there had been no integration of the services by the Central Government.
It was conceded before the Court that the
State had the authority to -transfer, subject to the Constitution and the rules
made under Art. 309, -any public servant to render service which by his
training and aptitude he was competent to do.
HELD : (i) The fact that the expression
'absorption' had not been used in the impugned order would not justify the
inference that there was no intention to absorb the former Saurashtra and Kutch
State personnel in the Secretariat.
[521 F] In the absence of determination of
equivalent posts under the orders of the Central Government, the State of
Gujarat was competent, as a matter of provisional arrangement to absorb the
former Saurashtra and Kutch States personnel in the ministerial establishment
of the Gujarat State Secretariat. In terms the order said that the persons
named therein "should be treated to have been regularly appointed in the
posts shown against their names in column 4 of the statement" appended to
the order. That clearly amounted to absorption. [521 G-H] (ii) The High Court
was wrong in holding that the impugned order was bad because it contravened r.
138 of the Recruitment Rules.
Assuming that r. 138 requires the State to
follow a certain method for recruitment to the ministerial service, that rule
made under Art. 309 of the Constitution cannot take away the statutory right
vested in the personnel of the former Saurashtra and Kutch States which they
acquired under s.
115(7) of the States Reorganisation Act, 1956
to hold posts in the new State which we-re equivalent and on terms which were
not, unless previous approval of the Central Government was obtained,
disadvantageous. Since the arrangement which was made by the Gujarat Government
must be regarded as provisional and to ensure so long as the Central Government
did not make a final decision, it was not open to the officers of "the
Secretariat to challenge the authority of the Government of Gujarat either to
transfer officers from the Districts and to post and assign them duties in the
Secretariat or to fix their pay and seniority among the officer of the
Secretariat performing ministerial duties.' [523 G-524 B] N. Raghavendra Rao v.
Deputy Commissioner, South Kanara, Mangalore, [1964] 7 S.C.R. 549 and Union of
India & Anr.
v. P. K. Roy & Ors. [1968] 2 S.C.R. 186,
applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 458 of 1969.
Appeal from the judgment and order dated July
1, 1968 of the Gujarat, High Court in Special Civil Application No. 1499 of
1966.
517 M. C. Chagla, S. K. Dholakia, Vineet
Kumar and J. R. Nanavati, for the appellants.
S. T. Desai, B. D. Sharma and S. P. Nayar,
foe respondent No. 1.
S. S. Shukla, for respondents Nos. 2 to 148.
The Judgment of the Court was delivered by Shah,
J. Certain officers in the ministerial branch of the Secretariat Service of the
State of Gujarat moved a petition in the High Court of Gujarat for an order
directing the State Government to treat its order dated August 19, 1966 as
"illegal, void and of no effect" and to forbear from enforcing its
order treating the persons whose names were specified in the annexure to the
order as servants of the "Secretariat cadre". The High Court of
Gujarat granted the petition and declared the order dated August 19, 1966,
invalid. With certificate granted by the High Court this appeal has been filed.
Prior to November 1, 1956, the appellants
were holding permanent posts in the ministerial service of the Secretariats of
the Part B State of Saurashtra and the Part C State of Kutch. By virtue of s. 8
of the States Reorganization Act 37 of 1956 the new State of Bombay, which
included the territories of the States of Saurashtra and Kutch, was formed.
Section 115 of the States Reorganisation Act made provisions relating to
services other than AllIndia Services. By sub-s. (1) of s. 115 it was enacted,
inter alia, that every person who immediately before the appointed day was
serving in connection, with the affairs of any of the existing States specified
therein shall, as from that day, be deemed to have been allotted to serve in
connection with the affairs of the successor State to that existing State. By
the proviso to sub-s. (7) it was provided that conditions of service applicable
immediately before the appointed day to the case of any person allotted to
another State shall not be varied to his disadvantage except with the previous
approval of the Central Government.
Section 116 provided for the continuance of
officers in the same posts. By s. 117 power was conferred upon the Central
Government to give directions to Any State Government that may appear to be
necessary for the purpose of giving effect to -the provisions of ss. 114,115
and 116 of the Act.
Under the States Reorganisation Act, 1956,
the appellants were allotted to serve in connection with the affairs of the new
State of Bombay. In exercise of the powers under Art.
309 of the Constitution, the Government of
Bombay sanctioned certain rules called "The Allocated Government Servants'
(Absorption, Seniority, Pay & Allowances) Rules, 1957".
Those rules governed the servants who were
allotted to the State of Bombay on reorganisation. A large majority of the
members of the ministerial branch of the Secretariat of the States of
Saurashtra and Kutch were, it appears, unwilling to be posted in the
Secretariat of the new State of Bombay. They were accordingly posted in the
districts of the former States of Saurashtra and Kutch.
Under Act 11 of 1960 called "The Bombay
Reorganisation Act" the States of Gujarat and Maharashtra were carved out
of the territory of the new State of Bombay. Under s. 81 provisions relating to
services other than All-India Services were made and by S. 82 provisions as to
the continuance of officers in the same posts was made. By s. 83 power was
given to the Central Government to give directions to the States. Those
provisions were substantially the same as the provisions of ss. 115, 116 and
117 of the States Reorganisation Act, 1956. The appellants were allotted to
serve in connection with the affairs of the State of Gujarat under s. 81 of the
Bombay Reorganisation Act.
The newly constituted State of Gujarat
finding a dearth of experienced officers in the Secretariat transferred the
appellants at diverse times between the years 1961, 1962 and 1963 to the
Secretariat of the State of Gujarat and 'assigned them duties in connection
with the Secretariat Service. Orders were issued from time to time fixing their
scales of pay and seniority. Apparently the Public Service Commission raised
some objections about an attempted integration between the officers who were
originally serving in the Secretariat Service, and those who were posted from
the districts. Ultimately on August 19, 1966, the State Government issued the
order to the following effect:
"The question of regularising the
appointment to various posts in the Secretariat Department on and after 1st May
1960 of the drafted persons was under the consideration of Government for some
time. Government is now pleased to direct, in consultation with the Gujarat
Public Service Commission, that the persons shown in the accompanying statement
should be treated to have been regularly appointed in the posts shown against
their names in column-4 of the statement with effect from the date shown in
column-5 in the Departments mentioned in column-3 of the statement.
2. As regards fixation of their pay and
seniority orders have already been issued in Government Resolution General
Administration Department No. SCT1161-F, dated 25th April, 1961 and Government
Resolution General Administration Department No. SCT1162-KH, dated 14th March
1964. The Departments are requested to fix their pay and seniority
accordingly." 519 Appended to the order was a list of 90 persons
designating the departments in which they were posted, posts to which appointed
and the dates from which they were appointed.
The officers of the Secretariat who before
the date of the order constituted the ministerial service then filed the
petition out of which this appeal arises challenging the validity of the order
of the Government. The petition was ,founded on three grounds : (1) that the
order violated r.
138 of the Recruitment Rules framed by the
Government of Bombay in 1957; (2) that the order violated the proviso to cl.
(6) of s. 81 in that it altered the conditions of service of the applicants;
and (3) that it violated the provisions of the Allocated Government Servants'
(Absorption, Seniority, Pay & Allowances) Rules, 1957.
Counsel for the applicants conceded before
the High Court that the transfer of the former Saurashtra and Kutch States
Secretariat personnel to the Gujarat Secretariat per se was not open to
objection. The High Court did not consider whether the Saurashtra and Kutch
States secretariat personnel had "any rights flowing on account of
absorption and integration of service under the States Reorganisation Act, 1956
or the Allocated Government Servants' Rules,, 1957." But the High Court
held that since the impugned order purported to amalgamate the former
Saurashtra and Kutch States personnel with the Gujarat Secretariat Service
contrary to the terms of r. 138 of the Recruitment Rules, and the Government
had no authority to vary the method of recruitment provided by the statutory r.
138 of the Recruitment Rules which was mandatory, the orders of transfer to the
Secretariat which was not made in the process of integration could not operate
as absorption under the Allocated Government Servants' (Absorption, Seniority,
Pay & Allowances) Rules, 1957. The High Court also observed that when the
ministerial service employees of the former Saurashtra and Kutch States
Secretariats were absorbed in the districts, integration of the services was
complete and any transfer thereafter to the Secretariat could not and did not
-amount to absorption in equivalent posts.
It is necessary first to examine the scheme
of ss. 115 & 116 of the States Reorganisation Act, 1956. Section 115 was
intended to provide for the conditions of service of employees who immediately
before November 1, 1956 were serving in connection with the affairs of a State
and were allotted to serve in connection with the affairs of another State.
Power to fix the conditions of service was reserved exclusively to the Central
Government. For that purpose the Central Government was authorised to establish
one or more Advisory Committees to 'advise the Government on the division and
integration of the services in the new States and for ensuring fair and
equitable treatment to all persons affected by the 520 provisions of S. 115 and
for proper consideration of any representation made by those persons. By the
proviso to sub-s. (7) S. 115 a guarantee was given to every allotted public
servant that his conditions of service shall not be varied to his disadvantage
except with the previous approval of the Central Government. Section 116
provided for the continuance of officers in equivalent posts.
This Court in N. Raghavendra Rao v. Deputy
Commissioner, South Kanara, -Mangalore(1) held that the effect of sub-s. (7) of
s. 115 is to preserve the power of the State to make rules under Art. 309 of
the Constitution, but the proviso imposes -a limitation on the exercise of that
power; the limitation is that the State cannot vary the conditions of service
applicable immediately before November 1, 1956, to the disadvantage of persons
mentioned in sub-ss. (1) & (2) of s. 115. In the view of the Court the
broad purpose underlying the proviso to s. 115 (7) of the Act was to ensure
that the conditions of service shall not be changed except with the prior
approval of the Central Government, that is, before embarking on varying the
conditions of service, the State Governments should obtain the concurrence of
the Central Government.
In Union of India & Anr. v. P. K. Roy
& Ors. (2) this Court held that it is the duty of the Central Government to
integrate the services, but the State may be asked to prepare a provisional
gradation list provided. the Central Government maintains its control over it.
It is clear that the conditions of service
applicable immediately before the appointed day in the case of any person who
is allotted to another State cannot be varied to his disadvantage except with
the previous approval of the Central Government. This protection could not be
removed by the rules made by the State subsequent to November -1, 1956, unless
the previous approval of the Central Government was obtained thereto.
It is true that the ministerial service
personnel in the States of Saurashtra and Kutch, after they were allotted to
the State of Bombay were posted and assigned duties in various districts in
Saurashtra and Kutch. But in the absence of evidence to show that the previous
approval of the Central Government was obtained, their right to be absorbed in
equivalent posts in the new State of Bombay and later in the State of Gujarat
was not thereby affected. It appears that there has riot been any equivalence
established between the posts in the Secretariats. of the States of Saurashtra
and Kutch and the posts in the new State of Bombay and: later in the State of
Gujarat to which the members of the ministerial service of the Secretariats of
former Saurashtra and Kutch States were allotted. The mere fact that they were
posted (1) [1964] 7 S.C. R. 549.
(2) [1968] 2 S. C. R. 186.
521 and continued to render service in the
Districts will not, in our judgment, affect the right of the personnel to be
absorbed in the equivalent posts in the Secretariat and on terms not
disadvanta-geous to those they were already entitled except with the previous,
approval of the Central Government.
It was conceded, and rightly, that the State
has the authority to transfer, subject to the Constitution and the rules made
under Art. 309 any public servant to render service which by his training and
aptitude he was competent to do. Transfer of the personnel from the States of
Saurashtra and Kutch to the Secretariat in the State of Gujarat and assignment
of duties performable by the ministerial staff in the Secretariat cannot be
challenged, and that because they were posted between 1956 and 1960 in the
Districts they will not be deprived of their statutory right under s. 115(7)
proviso. Posting in the districts was and must remain purely provisional, until
final integration is made by the Central Government. It is common ground that
no such final integration had been made by the Central Government.
Two grounds appealed to the High Court in
deciding the case against the appellants : (1) that the appellants were
transferred to the Secretariat of the State of Gujarat, but they were not
absorbed in the ministerial service of the Secretariat of the State of Gujarat.
In the view of the High Court there was merely "regularisation" of
the appointment of those persons for the purpose of performing service in the
Secretariat; and (2) that the order dated August 19,. 1966 was-contrary to the
Recruitment Rules, 1957.
If it be granted that the State was competent
'to transfer and did transfer the appellants to perform service in connection
with the affairs of the State in the Secretariat, it is difficult to hold that
when the State "regularised" the service of the appellants in the
Secretariat with the consent of the Public Service Commission there was no
absorption under the Absorption Rules. It is true that the expression
"absorption" has not been used in the order, but that will not
justify an inference that there was no intention to absorb the former
Saurashtra and Kutch States personnel in the Secretariat. In the absence of
determination of equivalent posts under the orders of the Central Government,
the State of Gujarat was competent, as a matter of provisional arrangement to
absorb the former Saurashtra and Kutch States personnel in the ministerial
establishment of the Gujarat State Secretariat. In-terms the order says that
the persons named therein "should be treated to have been regularly
appointed in the posts shown against their names in column-4 of the
statement" appended to the order. That, in our judgment, amounted to
absorption.
522 Original r. 138 of the Bombay Civil
Services Classification and Recruitment Rules, 1939, was deleted and the
following rule was substituted on May 22, 1957. The relevant part of the rule
reads "138. The ministerial staff in the Secretariat and attached offices
is divided into two Divisions.
(a) Upper; and (b) Lower.
(i) Superintendents : Appointments shall be
made bypromotion from among Senior Assistants.
(ii) Senior Assistants : Appointments shall
be made by promotion from among Junior Assistants.
(iii) Junior Assistants : Appointments shall
be made either : (a) by nomination on the results of a competitive examination
held by the Bombay Public Service Commission, or (b) by promotion from among
members of the Lower Division.
Provided that ,not more than one out of every
four vacancies in the posts of Junior Assistants shall ordinarily be filled by
promotion.
(2) To be eligible for appointment by
nomination a candidate must (i) hold a degree in Arts, law, science,
Agriculture or commerce of a recognised University or possess an equivalent
qualification;
(ii) have attained the age of 18 years; and
(iii) not have -attained the age of 30 years in the case of members of the
Lower Division appointed on the recommendation of the commission and who have
graduated while in service and in any other case 24 years on the first day of
the month immediately following month in which the posts are advertised by the
Commission.
B. Lower Division (b) Clerks, clerk-typists,
typists : Appointments shall be made by nomination on the results of a
competitive examination held by the Commission.
523 Provided that suitable members of Class
IV services who while in that service, have passed the Secondary School
Certificate Examination or an examination recognised by Government as equivalent
to that examination, shall be eligible for appointment to the posts of clerks
by promotion.
(2) To be eligible for appointment by
nomination, a candidate must -.(i) have passed the secondary school certificate
examination or an examination recognised by Government as equivalent to that
examination;
(ii) have attained the age of 18 years; and
(iii) not have attained the age of 23 years on the first day of the month
immediately following the month in which the posts are advertised by the
Commission.
A candidate for the post of clerk-typist or
typist must, also be able to type neatly and accurately at a minimum speed of
40 words per minute.
The High Court held that recruitment to the
ministerial staff in the Secretariat could only be by nomination or by promotion
from among members of the Lower Division, nomination being on the result of a
competitive examination held by the Public Service Commission and promotion
being from the subordinate staff. In view of this rule, according to the High
Court, it was not open to the State Government to adopt any other method of
recruitment of the members of the ministerial staff.
Counsel for the appellants contended that r.
138 only dealt with the existing servants and did not prevent any additional
members from being amalgamated in the ministerial staff in the Secretariat. He
also contended that the recruitment did not amount to admission of an officer
for the first time in the service. It is unnecessary for the purpose of this
appeal to consider these arguments. Assuming that r. 138 requires the State to
follow a certain method for recruitment to the ministerial service that rule
made under Art. 309 of the Constitution cannot take away the statutory right
vested in the personnel of the former Saurashtra and Kutch States which they
acquired under the States Reorganisation Act, 1956, to hold posts in the 'new
State which were equivalent and on terms which were not, unless the previous
approval of the Central Government was 524 obtained, disadvantageous. Since the
arrangement which is made by the Government of the State of Gujarat must be
regarded as provisional and to enure so long as the Central Government does not
make a final decision, it is not open to the officers of the Secretariat to
challenge the authority of the Government of Gujarat either to transfer
officers from the Districts and to post and assign them duties in the
Secretariat or to fix their pay and seniority among the officers in the Secretariat
performing ministerial duties.
The appeal must therefore be allowed and the
order passed by the High Court must be set aside. The petition filed by the
respondents Nos. 2 to 148 will stand dismissed. There will be no order as to
costs throughout.
G.C.
Appeal allowed.
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