Vasant Krishnarao Paturkar & ANR Vs.
D. R. Majramkar & Ors [1974] INSC 83 (8 April 1974)
GOSWAMI, P.K.
GOSWAMI, P.K.
KHANNA, HANS RAJ
CITATION: 1974 AIR 1502 1974 SCR (3) 857 1975
SCC (3) 162
ACT:
States' Reorganisation Act, 1956--S. 115 and
117--Whether High Court can decide issues of gradation seniority etc. of
officers allotted to the bilingual state of Bombay after reorganisation of
States.
HEADNOTE:
The appellants and the first 19 respondents.
and respondents 22 to 24 are the employees in the Agriculture Dept. of the
State of Maharashtra following reorganisation of states.
Respondents 1 to 19 were the original
petitioners in S.C.A.
No. 1354/70. They were officers of the former
Hyderabad--State. They prayed in their application for a writ to set aside the
Bombay Government's Resolutions dated 17th February 1958 and 16th May 1969 and
the provisional gradation List of 27th September 1969 and the Promotion orders
of 5th and 6th June 1970 and other consequential reliefs.
The Bombay High Court disposed of the
application on merits in favour of the appellants. The orders of the High Court
affected the interests of the present appellants.
Before the Nagpur Bench of the Bombay High
Court, appellant No. 1 and three other officers lodged an application
impleading the State of Maharashtra and 88 other respondents including the
present respondent 1 to 19. Respondents 1 to 19 and others contested the
application before the Nagpur bench unsuccessfully. The Nagpur bench allowed
the writ application and quashed the resolution of the Government dated
9-9-1960 and combined Seniority List of 22-8-62 and quashed the order of
absorption of the petitioners and respondents 3 to 89.
The respondents, who were Agricultural
officers from Hyderabad Region, Preferred an appeal against the judgment of the
Nagpur High Court before the Supreme Court. They were, allowed to withdraw the
same without prejudice to all parties affected to make representations to the
Government in accordance with 1 1 5 of the States Reorganisation Act 1956.
The Government of Maharashtra made a new
gradation list on 27-9-69 and allowed certain consequential orders of promotion
on 5th and 6th June, 1970. This, therefore led to the Special Civil Application
No. 1354 of 70 at the instance of respondents 1 to 19.
The appellant and another person had also
filed Special Civil Application No. 1126/71 in the Nagpur Bench for quashing the
resolution of Bombay Government of 16th May 1969 on certain grounds. That
matter is still pending in the Nagpur Bench. The respondents 1 to 19 were
impleaded as respondents in that application but they-did not file any
affidavits in support of their case. When the matter came up for hearing, the
appellants knew that another petition in the same subject was already decided
by the Bombay High Court. The appellants took immediate steps in the Bombay
High Court but failed to obtain any favourable orders.
although they prayed for rehearing of the
writ petition.
The problem is a difficult one to decide
gradation, seniority etc. when officers of 3 different States are alloted to
the new bilingual state of Bombay under the provisions of the States
Reorganisation Act. Setting aside the impugned judgment and order of the Bombay
High Court and directing restoration of the Special Civil Application No.1354/70
and disposal of the same in accordance with law,
HELD : (1) There is sufficient guideline in Part
X of the States Reorganisation Act 1956 and also in Part VIII of the Bombay
Reorganisation Act 1960 858 that the Government of India is the final authority
in the matter of division and integration of services among the new states to
ensure a fair and equitable treatment to all persons affected by the
reorganisation including proper consideration of any representation made by
concerned persons. further it is well settled that the Central Government under
See, 115 of the Act has to determine the principles governing equation of posts
and prepare common gradation lists by integration of services and in doing so
to ensure fair and equitable treatment to all persons concerned. [860 H; 861
A-B] D.Rajian Raj and Ors. v. Union of India & Ors. A.I.R.
1974 S.C. 457, N. SubbaRao etc, v. Union of
India & Ors.
[1972] 2 S.C.C. 862; and Union of Indiaand
another v. P. K.Roy & Ors. [1968] 2 S.C.R. 186, referred to.
(ii)The High Court cannot clothe upon itself
the authority for performing the functions which are specifically and expressly
intended to be the duty of the Central Government under the Act. Therefore, the
High Court was not right in directing the State Government to do that which
under the provisions of the Act is within the domain of the Central Government
and secondly, in fixing a 'lime limit for action and if the same is exceeded,
directing an automatic entitlement to the second relief as to equation,
absorption and fixation of seniority as prayed for by respondents 1 to 19.
[861 D] (111)In the present case, although
the High Court observed that there, was sufficient cause for rehearing the
special Civil application; it wrongfully did not give any opportunity to the
petitioners and the State of Maharashtra to canvass their respective points of
view against the writ petition. Under the circumstances, this Court directs
rehearing of the special civil application no. 1354/70 after giving
opportunities to all the parties concerned. [862 C]
CIVIL APPELLATE JURISDICTION :-Civil Appeal
No. 1227 of 1972.
Appeal by special leave from the judgment and
order dated the 9th December, 1971 of the Bombay High Court in Special Civil
Application No. 1354 of 1970.
M. N.. Pliadke, Naunit Lal and Lalita Kohli,
for the appellant.
S. C. Agarwala, K. K. Singhvi, R. K. Garo, S.
S.
Bhattnagar and Y. J. Francis, for respondent
Nos. 10 & 14.
M. C. Bhandare and M. N. Shroff, for
respondent Nos. 20--24.
The Judgment of the Court was delivered byGOSWAMI,
J.-This appeal by special leave is directed against the judgment of the High
Court of Bombay of 9th December, 1971, in Special Civil Application (S.C.A.)
No. 1354 of 1970 under Article 226 of the Constitution. The appellants and the
first nineteen respondents and respondents 22 to 24 are at present the
employees in the Agriculture Department of the State of Maharashtra following
reorganisation of States on 1st November, 1956.
Respondents 1 to 19 were the original
petitioners in S.C.A.No. 1354 of 1970. They were officers from the former Hyderabad
State piior to the States Reorganisation Act, 1956, (briefly called the Act).
They prayed in their said application for a writ to set aside the Bombay
Government's Resolutions of 17th February, 1958 and 16th May, 1969 and the
provisional gradation list of 27th September, 1969 and the promotion orders of
5th and 6th June, 1970 859 and other consequential reliefs. They had impleaded
in the said application five respondents, the first two being the State of
Maharashtra and the Director of Agriculture,' Maharashtra and the remaining
three respondents were the three Agricultural Officers impleaded in a
representative capacity by leave of the High Court under order 1, rule 8, Civil
Procedure Code. These respondents (Nos. 3 to 5) did not ;appear to contest the.
application in the Bombay High Court and it is alleged that they had no
interest in the matter and were in collusion with the appellants. Even the
first two respondents, namely, the State of Maharashtra and the Director of
Agriculture, went by default, although a belated prayer to enter appearance had
been made through counsel on behalf of the State of Maharashtra after
commencement of arguments, on the day of final hearing, which 'was, however,
rejected by the. High Court. The application was then disposed of, ex parte, on
merits by the High Court in favour of the applicants. It is not disputed that
the order of the High Court directly affects the interests of the present
appellants, who 'are Agricultural Officers from the Madhya Pradesh region.
From Bombay we may now turn to the Nagpur
Bench of the said High Court. There the appellant No. 1 and three other
Agricultural Officers lodged a Special Civil Application No.361 of 1964
impleading the State of Maharashtra and 88 other respondents, including the present
respondents 1 to 19.
Respondents 1 to 19 and others contested the
application before the Nagpur Bench unsuccessfully. The Nagpur Bench of the
High Court allowed the Writ application by its judgment and order dated 6th
December, 1967 and the operative part of the same may be quoted.
"Accordingly, we allow the petition and
quash the resolution of the Government dated 9-91960 and combined seniority
list issued by the Government on 22-8-1962. If the State Government wants to
alter the basis of equation originally fixed on 17-2-1958, an opportunity to
make representation against the proposed alteration has to be given to the
persons likely to be affected. The State Government will now take an appropriat
e action.
The neces sary correspondence of quashing of
these two orders is that the intermediate order of absorption which is
necessary step after inter se seniority and gradation list can be compiled is
also to be quashed.
Accordingly, we quash the order of
absorption, so far as these petitioners and respondents No. 3 to 89 are
concerned, dated 11.5.
1962. . . . .
The respondents, who were Agricultural
Officers from Hyderabad region,, preferred an appeal against the judgment of
the Nagpur Bench being No. 1366 of 1968 in this Court.
They were, however, allowed by this Court on
23rd January, 1969, to withdraw the same "without prejudice to all parties
affected to make representations to the Government in accordance with section
115 of the States Reorganisation Act,. 1956" 860 After the above order of
this Court, it is said that many Agricultural Officers made representations to
the Government of India under section 115 of the Act. The Government of
Maharashtra passed a Resolution of 16th May, 1969, purporting to be an order
giving new equation of posts in the Agricultural Department in pursuance of
which a gradation list was made on 27th September, 1969. Then followed certain
consequential orders of promotion of 5th and 6th June, 1970. This, as already
noticed, led to the Special Civil Application No. 1354 of 1970 at the instance
of respondents, 1 to 19 and the operative part of this impugned order of 9th
December, 1971, is in the following terms :"For the reasons stated in the
accompanying judgment, the Court makes absolute with costs the rule granted by
it on 30.6.70 in terms of the prayer (a) of the petition. The Court further
directs that if respondent No. 1 fails to decide the question of equation of
posts held by the petitioners in the former Hyderabad State in accordance with
law, and the observations in this Judgment within three months from 9.12.71,
Respondent No. 1 shall equate the posts of Agricultural Assistant of the former
Hyderabad State in the scale of' Rs. 176-300 with the posts of Agricultural
Officer, Grade I of the former Bombay State in the scale of Rs. 210-10-300 and
to absorb the petitioners and to fix their seniority on that basis with effect
from the 1st day of November 1956". . .
The appellant and another person had also
filed Special Civil Application No. 1126 of 1971 in the Nagpur Bench for
quashing the Resolution of the Bombay Government of 16th May, 1969, on certain
grounds. That matter is still pending in the Nagpur Bench. The respondents 1 to
19 were impleaded as respondents in that application and although they had been
served, they did not file any return when the said application came up for
hearing at Nagpur on 2nd February, 1972. The learned Government Advocate,
however, mentioned to the court that 'another petition on the same subject had
already been decided by the Bombay High Court. It. is said that this was the
first time when the appellants came to know of the impugned judgment and took
immediately steps in the Bombay High Court to set aside the order and for
rehearing the 'writ petition, but failed to obtain favourable orders.
The problem is indeed ticklish and sensitive
concerning integration, absorption, gradation and fixation of appropriate
seniority of the officers throwing by act of the State their common lot from
different areas, namely, the former State of Madhya Pradesh, former State of
Hyderabad and the former State of Bombay allotted to the new bilingual State of
Bombay under the provisions of the States Reorganisation Act. It is, however,
clear that there is sufficient guideline in Part X of the States Reorganisation
Act, 1956 as also later in Part VIII of the Bombay Reorganisation Act 1960 and,
it is served for the Government of India, advisedly, to be the final authority
in the matter of division and integration of services among 861 the new States
to ensure a fair and equitable treatment to all Persons affected by the
reorganisation including proper consideration of any representation made by
concerned persons. (See section 11,5 and section 117 of the Act and sections 81
and 83 of the Bombay Reorganisation Act, 1960).
It is well settled that the Central
Government under section 115 of the Act has to determine the principles
governing equation of posts and prepare common gradation lists by integration
of services and in doing so to ensure fair and equitable treatment to all
persons concerned. The Central Government is also required to give
opportunities to the parties affected to make their representations. (See D.
Rajian Raj & Others v. Union of India
& others(1); N. Subba Rao etc. v. Union of India and Others(2) and Union of
India & Anr. v. P. K. Roy & Ors.(3) ).
The High Court cannot clothe upon itself the
authority for performing the functions which are specifically and expressly
intended to be the obligation and duty of the Central Government under the Act.
The High Court is, therefore. not right in two matters namely, in directing the
State Government to do that which under the, provisions of the Act is within
the domain of the Central Government and secondly in fixing a time limit for
action and, if the same is exceeded, directing art automatic entitlement to the
second relief as to equation, absorption and fixation of seniority is prayed
for by respondents 1 to 19. This view of the.High Court is clearly erroneous in
view of the provisions of the Act.
That, however, does not dispose of this
matter. Mr. Phadke, learned counsel for the appellants, raises several
questions before US. Firstly, that the Division Bench of the, High Court could
not sit ill appeal against the Division Bench decision of the Nagpur Bench
which is binding on the respondents, 1 to 19. Secondly, that there is clear
violation of the principles of natural justice in disposing of the writ
petition by the High Court, ex parte, and in not reviewing its order when
sufficient cause was shown by the appellants herein. Thirdly, that the High
Court should not have allowed the application under order 1, rule 8, Civil
Procedure Code, and should have insisted upon personal service of the rule nisi
on the affected petitioners in a service matter of such implications.
Mr. Bhandare, learned counsel for the State
of Maharashtra, also, inter alia, took the point that the Central Government
was a necessary party and the petition should have been dismissed by the High
Court for non-joinder of that Government.
It is not necessary for us to go into these
questions in view of the High Court's order of December 24, 1971, in Civil
Application No. 3261 of 1971, of the State of Maharashtra and the Director of
(1) A.I.R. 1974 SC 457-1973 (1) SCC 61 (2) 1972 (2) S.C.C. 82 (3) [1968] (2)
SCR 186.
862 Agriculture praying for permission to
file an affidavit in reply to the writ petition and for contesting the petition
on merits. The High Court observed "'we are satisfied on reading these
affidavits that there was sufficient cause for rehearing the Special Civil
Application", but on perusal of the affidavit in re and hearing counsel
for the State rejected the said petition. The High Court also dismissed the
petitioners' application for rehearing the writ application.
We are not satisfied that the High Court was
right in not allowing an opportunity to the petitioners as well as to the State
to canvass their respective points of view before, it against the writ
application, particularly so when the matter had been heard in a representative
writ application and not one of the actually affected persons had been
impleaded as a respondent even to represent their category.
The High Court itself observed, as noticed
above, "there was sufficient cause for rehearing". Without,
therefore, going into the various points raised before us, we set aside the
impugned judgment and order of the Bombay High Court of 9th December, 1971 and
direct restoration of the Special Civil Application No. 1354 of 1970 to its
file for disposal of the same in accordance with law after giving opportunity
to all the parties concerned. We further direct that respondents 1 to 19 shall
take steps in the High Court to implead the Central Government as well as the
present appellants and all other officers affected by the orders sought to be
quashed in the Special Civil Application No. 1354 of 1970 The appeal is allowed
on the terms indicated above. There will be no order as to costs in this appeal.
S.C.
Appeal allowed.
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