C. P. Damodaran Nayar and P. S. Menon
Vs. State of Kerala & Ors  INSC 250 (20 December 1973)
REDDY, P. JAGANMOHAN
CITATION: 1974 AIR 1343 1974 SCR (2) 867 1974
SCC (4) 325
CITATOR INFO :
R 1981 SC2181 (27,28) D 1987 SC 424 (23)
States Reorganisation Act, 1956, Ss. 115 and
117-Madras State judicial Service Rules, 1953, r. 11-Applicability to officers
allotted to Kerala-"Seniority according to decision of Central
Governmental-Right of State Government,to constitute new cadres--'KLM'
principle and its scope.
Under s. 115(5) of the States Reorganisation
Act, 1956., the Central Government may establish one or more Advisory
Committees for the purpose of assisting it in regard to, (a) the division and
integration of services among the new Sites, and (b) the ensuring of fair and
equitable treatment to all persons affected. Under s. 177 the Central
Government may give such directions to any such State Government as may appear
to be necessary for the purpose of giving effect to the provisions of the Act
and the State Government shall comply with such directions. Accordingly, a meeting
of the Chief Secretaries of the various States that were to be effected by the
reorganisation was held in May, 1956, at the invitation of the Central
Government, and certain decisions were taken as to the general principles that
should be observed with regard to the integration work The Central Government
thereafter informed the State Governments that they had decided that the work
of integration of services, equation of posts and relative seniority should be
dealt with by the State Governments in the light of those general principles.
In 1962, the Central Government, after considering the representations of the
officers made under s. 115(5) of the Act, in modification of the earlier
principle excluding periods for which an appointment is held as a purely 'stop
gap or' fortuitous arrangement in fixing seniority, decided that the officers
allocated to Kerala State from the former Madras State may be allowed benefit
of emergency service towards seniority in the equated category if such service
would have been regularised from the date of their emergency appointment and
counted for seniority in Madras, on 1st November, 1956, had those officers
remained in Madras. The respondent-State accepted this decision of the Central
The appellant was selected as a District
Munsiff by the Madras Public Service Commission and was posted as such on May
26. 1951. and he has been in continuous service since then. Consequent upon a
decision of the Supreme Court of India, the Madras State Judicial Service Rules
(Madras Rules) were framed in 1953, but were given retrospective effect from
March 1951, and the service of the appellant and others was regularised as from
October 6, 1951. The State of Kerala came into being on November 1, 1956, and
the appellant was finally allotted Kerala with effect from October 24, 1956. On
March 26, 1966, the respondent State published the final integrated list of the
Travancore-Cochin and Madras personnel of the Judicial Officers as on November
1, 1956, showing respondents 6 and 7, whose dates of commencement of continuous
service were July 20, 1951, and October 1, 1951, respectively, as senior to the
appellant, on the basis that October 6, 1951, was assigned to him as the date
of commencement of his continuous service being-the date of his appointment to
the post in the equated category as on November 1, 1956. The respondent-State,
on October 20, 1959, also provided that some posts of District and Subdivisional
Magistrate of 'executive origin' would be constituted as a separate service
outside the civil judiciary, while being eligible for appointment as
subordinate judges and Munsiffs respectively. The appellant filed a writ
petition in the High Court questioning inter alia (1) the rank and place of
seniority given to him in the final list, on the ground that the date of
commencement of his continuous service is May 26, 1951; and (2) the order of
the respondent-State providing a special cadre for magistrates of executive
origin, on the ground that, if that order was implemented there was the
likelihood of subdivisional Magistrates securing promotion over munsiffs with
longer service. The High Court dismissed the petition.868 in appeal to this
HELD : (1) (a) Rule II of the Madras Rules
deals with temporary appointments. But it is not at all relevant for the
purpose of fixing the seniority of the appellant. it is inapplicable to the
appellant alter his final allotment to the State of kerala and after the clear
decision of the Government of India allowing the benefit of emergency service
in regard to seniority, which was accepted by the Kerala Government. [875 H]
(b) Assuming that the rule and the earlier decision of the Government of India
in conformity with the agreement with the Chief Secretaries referring to purely
stop-gap or fortuitous arrangements may be invoked, they are inapplicable to
the appellant, because, it cannot be held that the appellant's service is
either filled 'owing to an emergency' or that it was held as a 'purely stop-gap
or fortuitous arrangement.' The appellant had been appointed in a regular
manner through the public Service Commission and his appointment could not have
been made as a purely stopgap or fortuitous' one. The Government of India had
also accepted the position that an allotted employee should not suffer any
disadvantage if he would not have been subjected to a like handicap in his
parent State. The correspondence between the Madras and Kerala Governments
after the Central Government communicated its decision that the allocated
officers should be allowed the benefit of emergency service in regard to
seniority, showed that the position in Madras State was that continuous service
of the officer, whether regular, temporary or emergency, would have been taken
into account for the purpose of seniority. The appellant had been in continuous
service from May 26, 1951. Therefore, the conclusion is irresistible, that the
appellant was entitled to the assignment of May 26, 1951, for the purpose of
seniority, and the appellant in the connected appeal, would be entitled to the
assignment of February 12, 1955.[876 C-G] (2) There is no force in the
contention regarding the reservation of the separate cadre for the District
Magistrate and sub-divisional Magistrates of executive origin. It is open to
the State Government to constitute as many cadres as they Choose according to
administrative convenience and expediency. [876 H] (3) As regards the appellant
in the connected appeal he would not be entitled to an earlier date as the date
of continuous appointment on the ground that an officer junior to him who was
provisionally allotted to the State of Kerala along with him at initial stage
when the new State was constituted was assigned 1-7-1954 as his date of
continuous service; because, the 'KLM principle' was not applicable to that
appellant. According to the principle the seniority of the Travancore personnel
as between themselves, or of the Cochin personnel as between themselves could
not disturbed while' determining the relative seniority of the Travancore and Cochin
personnel in any class. But the officer who was junior to the appellant had
arranged for a mutual transfer with an officer from Madras 'and could not be
held to be in service in Kerala for the purpose of the final integrated list.
The question of inter se seniority cannot arise when there is nothing. to fix
such inter se seniority of the appellant vis-a-vis his junior. Therefore the
benefit of the principle cannot, be claimed by the appellant. [877C]
CIVIL APPELLATE JURISDICTION Civil Appeals
Nos. 2629 & 2630 of 1969.
From the judgment and order dated the 2nd
April,. 1969 of the Kerala High Court at Ernakulam in Original Petition Nos.
2709 and 2708 of 1966, and Civil Appeal Nos.
304 & 305 of 1972.
Appeals by special leave from the judgment
and order dated the 2nd April, 1969 of the Kerala High Court in Original
Petition Nos. 2708 of 1966 and Sardar Bahadur, and C. P. Damodaran Nayar,
appellant appeared in person( in C.As 2629/69 & 305/72) 869 K. T. Harindra
Nath and Vishnu Bahadur Saharya, for the appellant (in C.A. 2630/69).
V. A. Seiyid Mohmud and K. C. Dua, for
respondent Nos. 1 & 4 (in C. A. 2629/69 and respondent Nos. 1 & 3 (in
Gobind Das and S. P. Nayar, for respondent
No. 2 (in C.As. 2629 and 2630).
A. V. Rangam and A. Subhashini, for
respondent No. 3 (in C.A. 2629/69).
P. C. Chandi, for respondent No. 3 (in C.A.
304/72) and respondents Nos. 1 & 4 (in C.A. 305/72).
K. M. K. Nair, for respondent No. 5 (in
S. Gopalakrishnan, for respondent Nos.
6&7 (in C.A. 2629/ 69).
The Judgment of the Court was delivered by
GOSWAMI, J. These appeals by certificate are directed against the judgment of
the Kerala High Court in several writ applications filed there challenging the
final integration list of judicial officers allotted to Kerala State under the States
Reorganisation Act, 1956, briefly the Act. The appellant in Civil Appeal No.
2629 of 1969, which we will take first, was a practicing Advocate. He was
recruited along with 82 others by the Madras Public Service Commission, briefly
the Commission, and was temporarily appointed as a District Munsiff by the
Madras Government on November 25, 1950. This appointment was under rule 7A of
the Madras State Judicial Service Rules, 'then in force.
The Madras High Court posted him for training
which commenced on January 16, 1951 and while undergoing training he was posted
as District Munsiff at Calicut where he took charge' of this post on May 26,
1951. Since then he has been in continuous service as Munsiff, subordinate
Judge, District Magistrate and as District Judge. One B.
Venkataramans, who had not been selected as
District Munsiff along with the appellant and 'others 'in 1950, challenged the
selection made by the Commission in a writ petition before this Court. This
Court allowed the petition and the decision is reported in V. Venkataramana v.
The State of Madras & 'Another' (1) :This Court held that the Communal G.
0. of the Madras Government which besides
making reservation of posts for Harijans and backward Hindus, as sanctioned by
cl. (4) of Art. 16, also made reservation of posts for other communities viz.
Muslims, Christians, Non-Brabmin Hindus and Brahmins was repugnant to the
provisions of Art. 16 and was as such void and illegal. The Court, however, did
not cancel all the appointments made during the year but directed the
Government to consider and dispose of the application of Venkataramana on its
merits and without applying the, rule of communal rotation. It may be mentioned
that the appellants .here and other successful candidates were not joined as
respondents in 'the said writ petition before this Court. Venkataramana was (1)
A.I.R. 1951 870 accordingly selected and appointed as District Munsiff and he
took charge of his office on October 6, 1951, Consequent upon the decision in
that case the Madras State Judicial Service Rules (briefly the Madras Rules)
were framed on October 6, 1953 under Article 234 read with Article 309 of the
Constitution. These Rules came into effect retrospectively from March 22, 1951.
It is averred that appointment of the appellant is thus under rule 11(2) of the
Madras Rules. On November 2, 1953, the Madras Government directed that the
services of the appellant along with other candidates be, regularised w.e.f.
October 6, 1951, the same date from which Venkataramana's appointment has been
so done (vide Ext. P-7). It is also mentioned in this order that the 82
officers mentioned in the schedule to the order including Venkataramana (serial
No. 27) and the appellant (serial No. 72) will commence probation from that
date. The Government, however, sanctioned increment in the time scale to the
appellant and the other District Munsiffs appointed in 1950 and 1951 from the
date of commencement of continuous service (vide Ext. P-6). Consequent upon the
passing of the States Reorganisation Act on August 31, 1956, 51 judicial
officers including the appellant belonging to different cadres like District
Judge, District Magistrate, Sub-Judge, Munsiff and Sub-Magistrate were
transferred from the Madras State to the Kerala State on September 11, 1956.
The appellant was finally allotted to Kerala
w.e.f. October 24, 1956, as per order of the Government of India dated August
24, 1960, under the Act. The State of Kerala was brought into being w.e.f.
November 1, 1956. We may note here that the new Kerala State was formed under
section 8 of the Act comprising the territories of the existing State of
Travancore-Cochin, excluding the territories transferred to the State of Madras
by section 4; and the territories comprised in Malabar district, excluding the
islands of Laccadive and Minicoy and Kasaragod taluk of South Kanara district.
The Government of Kerala passed an order
(Ext. P-16) regarding reorganisation of judicial services. After the
reorganisation of States, principles were evolved and formulated by the Central
Government at the conference of Chief Secretaries of the different States regarding
integration of services. The Kerala Government framed principles and procedures
regarding integration of services of Travancore-Cochin personnel with the
personnel allotted from Madras (vide Ext. P-13). The Madras Government also
framed general principles for integration of services by their order dated
July. 17, 1957 (vide Ext. P-14). The Government of Kerala issued orders
regarding equation of posts in the Judicial Department for the purpose of
integration of services on May 27, 1958 (vide Ext. P-17).
The equation was as follows
"Travancore-Cochin (1) District Judge-I GradeDistrict Judges-II Grade-Rs. Rs.
District & Sessions Judge, District
Magistrate. (Judl.) II Grade-Rs. 500-800. Grade-500-700 plus Spl.
pay Rs. 50/871 (iii) District Magistrate Sub
Judges on-Rs. 550700.
Addl. District and Sessions Judges and
Sub-judges Grade-Rs. 450-600, (iv) Sub Divisional Magistrates District Munsiff
and Sub Divisional Magistrate Rs. 300-700.
I Grade-Rs. 450-600.
Munsiffs and Sub-Divisional Magistrate Grade
II on-Rs. 250-500.
(v) Sub Magistrate Rs. 200300." Sub
Magistrates Rs. 200-300.
The appellant preferred an appeal against
this order through the Kerala High Court and the Government of Kerala to the
Advisory Committee constituted by the Central Government under section, 115(5)
of the Act challenging among other things that the principles evolved for the
equation, of posts were illegal and unjust. Meanwhile the Government of Kerala
on September 24, 1959, ordered that it would not be proper to equate the
District Magistrates and the SubDivisional Magistrates of Grades I and II of
'executive origin' belonging to the erstwhile Travancore-Cochin State with the
Civil Judicial Officers and that the same should be kept separate until the
Magisterial Officers were introduced into the Civil Judiciary in the manner
prescribed under Article 234 of the Constitution. By the same order it was
provided that the three posts of the District Magistrates (actually four since
one was omitted through mistake) and eight posts of Sub-Divisional Magistrates
of the TravancoreCochin area would be constituted as a separate service outside
the Civil Judiciary so as to enable the incumbents to continue in their posts
(vide Ext. P-21). On the same date, the Government of Kerala passed an order
under Article 234 of the Constitution by which the salaried Magisterial
Officers of the former Travancore-Cochin State in the categories of District
Munsiffs and Sub-Divisional Magistrates were made eligible for appointment to
the categories of Subordinate Judges and Munsiffs respectively (vide Ext.
P-27). The appellant preferred an appeal against the order (Ext. P-21) on
October, 20 1959 (vide Ext. P-22). He pointed out that if the aforesaid order
(Ext. P-21) was implemented there was likelihood of the Sub-Divisional
Magistrates who had got far less service than that of the Munsiffs securing
promotion over such Munsiffs.
The Kerala Government passed a final order
regarding the equation of posts in the judiciary on July 24, 1961 (vide, Ext.
P-23) and informed the appellant that the. appeals had been rejected by the
Government of India. The Government of Kerala published the preliminary
integrated list of Judicial Officers on April 24, 1962 (vide Ext.P-24). The appellant
preferred an appeal against this list (vide Ext. P-25).
Other officers also filed representations and
appeals against the same. In the, preliminary integrated gradation list of the
Travancore-Cochin and Madras personnel as Ion November 1, 1956, the appellant
was 872 shown against serial No. 44 and his date of commencement of continuous
service as well as the date of appointment to the post of equated category was
shown as May 26, 1951.
Respondents 6 and 7 were shown below him
against serial Nos.
46 and 47 respectively in the list. Their
dates of commencement of continuous service are July 20, 1951 and October 1,
1951 respectively and the same are the dates of appointment to the post of
equated category in the list.
After publication of the preliminary
integrated list, the Government of Kerala issued two orders on May 16, 1962 and
May 10, 1963 (vide Exts. R-1 and R.2) respectively. R-2 has superseded the
earlier order R-1 and some other orders.
We may quote the relevant portion of the
order in Ext. R-2 which rans as follows "The Government of India have
considered the representations of the officers and have decided as follows :(i)
The officers allotted to Kerala from Madras may be allowed the benefit of
emergency service towards seniority in the equated category if such service
would have been regularised from thedate of their emergency appointment and
counted for inter-state seniority in integration in Madras on 1-111956 had they
remained in Madras.
X. x x x This decision of the Government of
India was accepted by the Kerala Government. On the subject of taking into
account the emergency service there was correspondence between the Central
Government and the Government of Kerala (vide Ext.
P-32 dated March 1, 1962) On the same subject
matter there were two letters from the government of Madras addressed to the
Kerala Government (vide Exts. p-34 dated July 20, 1963 and P-35 dated November
7, 1963) to the Secretary allotted Agricultural Officers' Association, certain
ad-hoc rules (vide Ext.P-28) for absorption of Criminal side Judicial Officers
of the Travancore-Cochin Branch who' were kept in a separate cadre. These rules
inter alia provided that for the purpose of determining seniority the date of
commencement of continuous service in the post of District Magistrate shall be
deemed to be, the date of first appointment to, the category of Sub-Judge. The
appellants' appeals were ultimately rejected-by the Governmentof India.
On-March 26, 1966, the Government-of Kerala published the final integrated list
of the Travancore-Cochin and Madras personnel of the Judicial Officers as on
November 1, 1956 (vide Ext. P-31) showing respondents 6 and 7, who were junior
to him as per the, preliminary integrated list, now placed above him in, the
final list In the preliminary list although his date of commencement of
continuous service was shown as May 26, 1951, he was assigned in final list
October 6, 1951 being the date of his appointmentto the post in the equated
category as on November 1, 1956. In the above 873 background, the appellant
filed a writ application in the High, Court of Kerala praying for restraining
the State Government and the Registrar of the High Court from implementing Ext.
P-31, the final. list, and to award to the appellant appropriate rank and
seniority above respondents 6 and 7, amongst other prayers. His application
came up before a Full Bench of the High court and the same was rejected. The
respondents were impleaded in the High Court in a representative capacity and
the High Court's order under or.1 r.8, Civil Procedure Code, were obtained and
the notice was published in the newspaper.
Several questions were raised before the High
Court, but the appellant here has made two main submissions :
(1) His seniority in service in the
integrated judicial service in Kerala should be counted from May, 26, 1951, the
date on which he joined service and from which he has continuously been
(2) There is no justification in law for
creation of a separate cadre for Magistrates of the executive origin and for
reserving four posts of District Magistrates, exclusively in favour of
Sub-Divisional Magistrates of executive origin.
The appellant's grievance is that he should
have been assigned May 26, 1951 instead of October 6, 1951. It is clear that
under section 115(5) of the Act "the Central Government may by order
establish one or more Advisory Committees for the purpose of assisting it in
regard to(a) the division and integration of the services among the new States
and the States of Andhra Pradesh and Madras; and (b) the ensuring of fair and
equitable treatment to all' persons affected by the provisions of this section
and the proper consideration 'of any representation made' by such
Under section 1 17 of the Act, "the
Central Government may at any time before or after the appointed day give such
directions to any .State Government as may appear to it to be necessary for the
purpose of giving effect to the foregoing provisions of this Part and the,
State Government shall comply with such directions". In accordance with
'lie provisions of this Act, a meeting of the Chief Secretaries of the, various
States that were to be affected by the reorganisation, was held on May 18-19,
1956, at the invitation of the Central Government In this meeting certain
decisions were taken as to the general principles that should be observed with
regard to the integration work. The government-of India thereafter informed the
State Government that they had decided that the work of integration of services
should be dealt with by the State Governments in the light of general
principles already decided in the meaning of the Chief Secretaries. With regard
874 to the principle for, determining equation of posts and relative seniority,
the following conclusions were reached at the conference of the Chief
"It was agreed that in determining the
equation of posts, ,the following factors should be borne in mind (i) the
nature and duties of a post;
(ii) the responsibilities and powers
exercised by the officer holding a post; the extent of territorial or other
charge held or responsibilities discharged;
(iii) the minimum. qualifications, if any,
prescribed for recruitment to the post;
(iv) the salary of the post;
It was agreed that in determining relative
seniority is between two persons holding posts declared equivalent to each
other, and drawn from different States, the following points should be taken,
into account (i) Length of Continuous service, whether temporary or permanent,
in a particular grade;
this should exclude periods for which an
appointment is held in, a purely stop-gap or fortuitous arrangement;
(ii) age of the person; other factors being
equal, for instance, seniority may be determined on the basis of age.
Note : It was also. agreed that as far as possible,
the inter se seniority of officer drawn from the same State should not be
This position was altered as already noted
earlier when the Central Government, after considering the representations of
the officers made under section 115(5) of: theAct decided that "the
officers allocated to Kerala State from former Madras, may be allowed the
benefit of emergency service towards seniority in the equated category if such
services towards service(sic) would have been registered from the date of their
emergencyappointment and counted for inter-state seniority in, integration on
1st November 1956, had these officers remained in Madras " (vide Ext. P33
dated 16-2-1963 which modified Ext. P-32 dated 1-3-1962) We have also referred
to a letter from the Government of Madras to the Kerala Government dated to a
letter from 1963 (Ext.
P34) wherefrom the following extract is
relevant:" According to sub-paragraph (2) of paragraph 1 of the said G.O.
the date from which an allottee to this State from the former Travancore-Cochin
State was continuously holding the corresponding post in the former
Travancore-Cochin State is taken into account for the purpose of fixing his
seniority in the equated cadre in this state.
Therefore for (3)of paragraph 1 of said G.O.
only continuous service 875 whether regular, temporary or emergency of the
allottees is taken into account".
Hence the position in Madras is that
continuous service of the appellant "whether regular, temporary or
emergency" would have been taken into account for the purpose of
seniority. It is also clear and not even disputed that the appellant has been
in continuous service from May 26, 1951. That being the position, the
conclusion is irresistible in view of the Government's decision (vide Ext.
P-33) that the appellant was entitled to the assignment of May 26, 1951 for the
purpose of his seniority..
Dr. Syed Mohamad, on behalf of the 1st
respondent, submits that the question has to be decided with reference to rule
11(2) of the Madras Rules. The same may be set out :
11(2) : "Where the appointment of a
person as District Munsiff in accordance with these rules would involve,
excessive expenditure on travelling allowance or exceptional administrative
inconvenience, the Governor may appoint any other person in the list of
approved candidates. A person appointed under this rule shall not be regarded
as a probationer in the service or be entitled by reason only of such
appointment to any preferential claim to future appointment to the
"The High Court accepted this submission
when it observed as follows:-"The appointment under rule 11(2) is a
temporary appointment and it is so stated in the rule itself. Appointment under
rule 11(3) also is a temporary appointment though this can be even of persons who
do not figure at all in any select list prepared after the selection by die
Public Service Commission. A reading of the rule--rule 11(3) of the Madras
State Judicial Service Rules--shows that this rule will be resorted to in cases
of emergency. Suffice to say at this stage that service rendered in a temporary
capacity by virtue of appointments under rules 11(2) or 11(3), at any rate the
whole of it, did not necessarily count for the purpose of inter se seniority
among the persons who belonged to the particular service in the State or
The Government of India decided that this
service which did not count for inter se seniority among the Madras personnel
in the State of Madras and did not count for inter State seniority in the
matter of integration of the personnel that remained in the State of Madras
with those that have been allotted to the State of Madras, will not count for
inter State seniority of personnel allotted from the State of Madras to the
State of Kerala, for, the purpose of integration with the Travancore-Cochin
It is true that rule in deals with temporary
Rule 11(3), however, is not at all relevant
for the purpose of the present case 876 The question that arises for
consideration is that whether after final allotment of the appellant under the
Act to the State of Kerala, the application of the Madras Rules would be at all
relevant in face of a clear decision of the Government of India made under the
Act. We have to hold in the negative. Apart from that, the Government of India
took a decision which also the Kerala Government had accepted (vide Ext. R-2)
as already set out. In this view of the matter we are Unable to agree with the
High Court that the appellant had been correctly assigned his date October 6,
1951 instead of May 26, 1951.
It is next submitted by the learned counsel
for the 1st respondent that the appointment of the appellant was "purely
stop-gap or fortuitous arrangement" as mentioned in the principles agreed
at the meeting of ,the Chief Secretaries.
He also tries to reinforce his argument by
referring to rule 11(3) which provides that "where it is necessary in the
public interest owing to an emergency which has arisen to fill immediately a
vacancy in, the category of District Munsifs........ Assuming that rule 11(3)
may be invoked and the earlier decision of the Government of India in
conformity with the agreement of the Chief 'Secretaries referring to
"purely stop-gap or fortuitous arrangement" are applicable, we are
unable to agree that the appellant's service is, either filled "owing to
an: emergency" or that the same is held in a "purely stop-gap. or
fortuitous arrangement". The learned counsel for the 1st respondent
followed by the counsel for the Union of India has submitted that on account of
the writ application by Venkataramana in the High Court the appointment of the
appellant had to be made as a temporary measure as has been mentioned in the
letter of appointment itself. We are, however, unable to accept this been
appointed in a regular manner through the Public Service Commission and
his-appointment cannot by any stretch of imagination be made to fill a
"'purely stop-gap or fortuitous" vacuum. As noticed earlier, the
Government of India has accepted the position that an allotted employee should
not suffer any disadvantage if he Would not have been subjected to a like
handicap in his parent State. It is clear from the position taken by the Madras
' Government that the appellant would have got the benefit of his continuous
appointment' in Madras w.e.f. May 26, 1951 (Vide Ext. P-34). That being the
position the submissions of the learned counsel for the respondents are of no
avail. we hold that he appellant should be given the benefit of his seniority
reckoning his continuous appointment and assigning the date. 26th May 1951 and
substituting the same in the final list for 6th October, 1951.
With regard to the. second submission of the
appellant regarding the reservation of a separate cadre e for the District
Magistrate And Sub-Divisional Magistrates of executive origin, we do not see
any force in his contention.
It is open, to the, State Government to
constitute as many cadres as they choose according to administrative
convenience and expediency .There is, therefore, no merit in the objection to
the creation of a separate cadre of District Magistrates and sub-Divisional
Magistrates of executive origin. The submission of the appellant is without any
purchases and there would be no disincentive
to the dealers to desist from selling goods to unregistered purchasers in
course of inter-State trade. The object of' the law apparently is to deter
inter-State sales to unregistered dealers as such inter--State Sales would
facilitate evasion of tax. [984 C] 877 With regard to Civil Appeal No. 2630 of
1969 of P. S. Menon, Sub-Judge, Quilon, the above submissions, which we have
dealt With, were also advanced in his case. For the same reasons, the appellant
in this appeal will be entitled to assignment of 12th February, 1955, as the
date of continuous employment of his service after allotment to the Kerala
State for the purpose of his seniority. The learned counsel, however,
additionally contends that he should have the benefit of what is described as
the K.L.M. Principle in the following circumstances :
One Sethu Madhavan, who is admittedly junior
to the appellant, was provisionally allotted to the State of Kerala along with
the appellant at the initial stage when the new State was constituted. Later on
however, Sethu Madhavan arranged a mutual transfer with a Judicial Officer from
Madras who desired to take transfer to Kerala and for that ;,reason his
provisional allotment was cancelled and he was not finally allotted to Kerala.
In the final integration list Sethu Madhavan's name therefore, does not appear.
If Sethu Madhavan had remained in Kerala, the
position of the appellant in the list sight have been different, since.
Sethu Madhavan's date of continuous service
But the final list will now have to be judged
without taking note of Sethu Madhavan who had already left the State. It is
submitted that since the final list has been prepared as on 1-11-1956, the
appellant should get the benefit of his date. Since, however, Sethu Madhavan
cannot be held be in service in Kerala for the purpose of the final integrated
list the appellant is not entitled to assignment of his date.
We may now describe what the K.L.M. Principle
is. The expression 'K.L.M. Principle' which came into existence in the
Travancore-Cochin State by an order dated 27th September, 1950, has been
described in the following words by the High Court in the judgment "The
relative seniority of the Travancore and Cochin personnel in any class or grade
in the common seniority list will be determined with reference to the date of commencement
of continuous service in the same or similar class or grade of posts subject,
however, to the condition that the Seniority of the Travancore personnel as
between themselves or of the Cochin personnel as between themselves should not
thereby be disturbed".
Dealing with the point the High Court
observed as follows "Though they said Sethu Madhavan commenced service
earlier in the State of Madras he was admittedly junior to the petitioner and
therefore it will become necessary for settling the inter se seniority of the
petitioner vis-a-vis Sethu Madhavan to assign to the petitioner in integrated
gradation list a place above the said Sethu Madhavan. This is so because the
principle settled as early as 29th December 1956 by G.O. of that date clearly
provided that in effecting, integration the inter se seniority of persons in
either branch that 878 are integrated should not be affected. The question
however cannot arise when there is no need to fix the inter se seniority of the
petitioner vis-a-vis the said Sethu Madhavan".
We agree with the above observations of the
High Court and reject the submission of the appellant that he is entitled to
the benefit of the K.L.M. Principle on the basis of the provisional allotment
of Sethu Madhavan.
It may be mentioned that we had allowed
without objection from the respondent CMP No. 9761 of 1973 and admitted the
documents mentioned therein.
In the result the appeals are partly allowed.
The 1st and 2nd respondents are directed to assign to the appellant, C.P
Damodaran Nayar, the date May 26, 1951, by substituting the same for October 6,
1951, in the final integration list and to give him the consequential benefits
to which he may be entitled by virtue of this assignment'.. The aforesaid
respondents are also directed to assign to ;the appellant, P. S. Menon, the
date February 12, 1956, in the final integration list and to give him such
consequential relief as-he may be entitled to in pursudance of the new assigned
date. The judgment of the High Court is set aside only to the extent indicated
above. The appellants are entitled to costs in this Court. Two sets only.
Civil Appeals Nos. 304 and 305 of 1972 are
identical by the same two appellants and they'stand disposed of accordingly by
this V.P.S. Appeals partly allowed.