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Shankarayya (G.M.) and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 2186, 2283, 2297, 2316, 2354 and 2574 of 1963 and 53, 121, 943 and 983 of 1964
Judge
Reported in(1967)ILLJ15Kant; (1965)2MysLJ40
ActsStates Reorganization Act, 1956 - Sections 115; Constitution of India - Article 311(2)
AppellantShankarayya (G.M.) and ors.
RespondentUnion of India and ors.
Excerpt:
- industrial disputes act, 1947. [c.a. no. 14/1947]. section 33-c (2): [subhash b. adi, j] application under removal of workman from service- award for reinstatement in service with 85% of back wages and consequential benefits challenge to award modification of back wages from 85% to 50% - claim of the workman for shoe allowance, uniform allowance, stitching allowance, washing allowance etc., - held, the uniform is given to the employee to use the same while he is on duty. uniform is not given for regular or casual wear of the employee. if the employee is not admittedly on duty or was not worked during the said period, he cannot claim the uniform allowance just because that he has been directed to be reinstated with consequential benefits with continuity of service. continuity of.....orderk.s. hegde, j.1. these are connected writ petitions. in these writ petitions, most of the contentions raised are common and hence it would be convenient to deal with them together. excepting writ petitions no. 2574 of 1963 and no. 53 of 1964, the rest of the writ petitions were filed by officers, who before the reorganization of state were borne on the cadre of assistant conservator of forests in the erstwhile state of mysore. they stood allotted to the new state of mysore under s. 115 of the states reorganization act, 1956, to be hereinafter referred to as the act. the petitioner in writ petition no. 2574 of 1963 was recruited as an assistant conservator of forests in 1953 in the state of madras. at the time of the reorganization of the states, he was serving as an assistant to the.....
Judgment:
ORDER

K.S. Hegde, J.

1. These are connected writ petitions. In these writ petitions, most of the contentions raised are common and hence it would be convenient to deal with them together. Excepting Writ Petitions No. 2574 of 1963 and No. 53 of 1964, the rest of the writ petitions were filed by officers, who before the reorganization of State were borne on the cadre of Assistant Conservator of Forests in the erstwhile State of Mysore. They stood allotted to the new State of Mysore under S. 115 of the States Reorganization Act, 1956, to be hereinafter referred to as the Act. The petitioner in Writ Petition No. 2574 of 1963 was recruited as an Assistant Conservator of Forests in 1953 in the State of Madras. At the time of the reorganization of the States, he was serving as an assistant to the District Forest Officer at South Kanara. After the reorganization, he was allotted to the new State of Mysore. The petitioner in Writ Petition No. 53 of 1964 was serving as an Assistant Conservator of Forests in the State of Madras on the date of the reorganization of the States, he having been promoted to that post on 21 September, 1945.

2. Reliefs claimed by such of the petitioners who were allotted from the erstwhile State of Mysore are identical. They ask this Court to issue a writ of certiorari calling for the records culminating in the decision of respondent (the Union of India) that the Assistant Conservator of Forests allotted from the erstwhile State of Mysore be equated in category IV, in the categorization made by it and quash the same, and further to direct respondent 1 to include them in category III.

3. The petitioner in Writ Petition No. 2574 of 1963 prays that this Court may be pleased to quash the order of respondent 1 rejecting his claim to be equated with the Deputy Conservator of Forests allotted to this State from the former States of Bombay and Hyderabad and placed in category III.

4. The petitioner in Writ Petition No. 53 of 1964 has since retired. His prayer is that this Court may be pleased to quash the decision of respondent 1 to place him in category IV and direct it to place him in category III and further to treat his date of promotion to the equated cadre as on 5 July, 1958 and not as on 1 July, 1960 and to grant him the arrears of benefits accruing to him from the date of his promotion, up to date as Conservator of Forests.

5. These petitions and petitions similar to these are the aftermath of the reorganization of the State in the year 1956. As a result of the reorganization of the States, the new State of Mysore was created, which includes the whole of the erstwhile States of Mysore and Coorg and parts of the former States of Bombay, Hyderabad and Madras. In view of S. 115(1) of the Act, officers serving in the erstwhile States of Mysore and Coorg are deemed to have been allotted to the new State of Mysore. Further, some of the officers, who were serving in the former States of Bombay, Hyderabad and Madras, were allotted to the new State of Mysore. As a result of these changes, it became necessary for the Central Government to divide the services in the former States of Bombay, Hyderabad and Madras and allot some of the service personnel to the new State of Mysore. The service personnel allotted to the new State of Mysore had different conditions of service in their parent States; their designations were different, their duties were not identical and their pay-scales were vastly different from one another. Therefore, the question of integrating them is beset with a great deal of difficulties. The power to divide the services as a consequence of the reorganization of States and allot them to the concerned successor States and further to integrate the service in the successor States is exclusively that of the Central Government - See : M. A. Jaleel and Others v. State of Mysore [A.I.R. 1961 Mys. 210]. Partly due to the difficulties in the process of integration, partly due to the conflicts of interest based on regional and other extraneous considerations at the State level and to an extent, which by no means is insignificant, due to the indifference on the part of the authorities at the Centre to the resulting consequences, even though more than eight years have elapsed, the integration of most of the services has not yet been effected, as a result of which, there appears to be great deal of discontentment and frustration in the minds of the service personnel. Appreciable time of this Court is taken up by considering the grievances of the service personnel. We have found that many of those grievances are well-founded and that great injustice has been done to several of the officers. There appears to be a feeling of uncertainty, as to their future, in the minds of the public servants. The prevailing situation has lent itself for manipulation by some officers in key positions. Regional and sometime even communal considerations appear to have had a free play in making promotions during the interregnum. We have permitted ourselves this digression so as to impress on the authorities concerned the urgent necessity for making just and final integration of the various services.

6. In these cases we are concerned with the integration of the gazetted officers of the Forest Department in the new State of Mysore. There were different administrative set-ups in the States from which the officers were drawn. In the erstwhile State of Mysore, the Forest Department consisted of the following classes of gazetted officers :

1. The Chief Conservator of Forests,

2. Conservators of Forests,

3. Senior Conservators of Forests,

4. Assistant Conservators of Forests, and

5. Sub-Assistant Conservators of Forests.

7. In the State of Madras, the gazetted officers of the Forest Department were divided into following categories :

1. Chief Conservator of Forest,

2. Conservators of Forests, and

3. Assistant Conservators of Forests.

8. In Coorg, there were only the Chief Conservator of Forests and the Deputy Conservators of Forests. In the Former State of Hyderabad, there were the Chief Conservator of Forests, Conservators of Forests, Deputy Conservators of Forests and Assistant Conservators of Forests. So was the case in the former State of Bombay. The question is how to integrate the officers of the Forest Department allotted to the new State of Mysore. For doing so, first there must be equation of posts. There is no dispute as regards the posts of the Chief Conservators of Forests and the Conservators of Forests. The controversy centres round the question as regards the equation of the Assistant Conservators of Forests of Mysore and Madras and the Deputy Conservators of Forest of Hyderabad and Bombay.

9. While preparing the provisional inter-State seniority list, the State Government, by its order dated 26 March, 1957, equated the posts of Assistant Conservation of Forests of Mysore and Madras with that of the Deputy Conservators of Forests of Hyderabad and Bombay. Their inter se seniority was fixed on the basis of their continuous service in the cadre in question. Some of the officers objected to this equation. In order to consider the objections of these officers, the Central Government deputed Sri Dutt, and Indian Civil Service Officer. A special committee examined these objections with the assistance of Sri Dutt and thereafter a fresh seniority list was published in 1960 based on the recommendations of the committee. That committee recommended that the Assistant Conservators of Forests allotted from Mysore and Madras with six or more years of service should be equated with the Deputy Conservators of Forests allotted from the former States of Hyderabad and Bombay. Some of the officers were not satisfied with that recommendation. Hence they made representations to the Central Government. Those representations were got examined by the Central Government by the advisory committee constituted under S. 115(5) of the Act. On the basis of the advice tendered by that committee, the Central Government equated the posts of Senior Assistant conservators of Forests allotted from the former Mysore State with that of the Deputy Conservators of Forests allotted from the former States of Bombay and Hyderabad and the posts of the Assistant Conservators of Forests and Sub-Assistant Conservators of Forests allotted from the former State of Mysore and that of the Assistant Conservators of Forests allotted from the former State of Madras with the posts of Assistant Conservators of Forests allotted from the former States of Bombay and Hyderabad. It is the correctness of this decision which is in issue.

10. It was urged on behalf of the petitioners herein that the decision of the Central Government is ultra vires of its powers; it is unfair and inequitable and that the same was reached without giving them proper opportunity to make representations against the plea put forward by the former officers of Bombay and Hyderabad. According to the petitioners, the impugned decision suffers from errors apparent on the face of the records; and that it was a wholly arbitrary decision.

11. In opposition to the above contentions, it was urged on behalf of the Central Government and some of the contesting respondents that the conclusion reached by the Central Government being an administrative decision, the same is not open to judicial review. It was further said that the impugned conclusion is essentially just and reasonable. It was denied that there was any contravention of the principles of natural justice. According to them, reasonable opportunities for proper representation were given to all the officers and the plea of the officers allotted from the former States of Mysore and Madras was not only put forward by them but was also eloquently represented by the Chief Minister of the State, who specially requested the Home Minister in the Central Government to reconsider the conclusion of the Central Government and at his instance the whole question was re-examined by the Central Government with the assistance of the advisory committee; but the Central Government was not satisfied that there was any case for changing its earlier decision. It was impressed on us that the decision of the Central Government was based on the advice tendered to it by the advisory committees, an august body consisting of the Chairman of the Central Public Service Commission, a retired Judge of the High Court and a retired Law Secretary of the Government of India.

12. In the course of his arguments, the learned Attorney-General, who appeared for the Central Government, raised a new contention. According to him, the conclusion reached by the Central Government and impugned in these proceedings, is only a preliminary conclusion; the affected parties have the right of representation against that conclusion; the Central Government is bound to examine their representations with the assistance of the advisory committee and if need be revise the conclusion reached earlier; hence these petitions are premature. Though this contention was not taken in the pleadings, as that contention was based solely on the language of S. 115(5) of the Act, we permitted the learned Attorney-General to raise the same and gave opportunities to other parties to have their say in the matter. Hence, we propose to examine that contention as well.

13. From the arguments advanced before us, the following common questions arise for consideration :

(i) Is the impugned decision open to judicial review

(ii) Is it vitiated by the doctrine of ultra vires

(iii) Whether the reliefs claimed are premature

(iv) Is the impugned decision liable to be struck down for any reason

14. The individual reliefs claimed by two of the petitioners will be considered separately.

15. The most debated question before us was as to the nature of the power conferred on the Central Government under S. 115(5) of the Act. It was contended on behalf of the petitioners that the said power is quasi-judicial in character and therefore the decision reached by the Central Government is open to judicial review. But, it was strenuously contended on behalf of the contesting respondents that it is an administrative power and consequently the decision of the Central Government is not open to be questioned before Courts of law.

16. Part X of the Act contains provisions as to services. This part contains Ss. 114 to 118. Section 114 relates to All India Services, and that section is not relevant for our present purpose. Section 116 provides for the continuance of officers in the same posts after reorganization of the States till other arrangements were made. It is purely a transitory provision. It lays down that every person who immediately before the appointed day was holding or discharging the duties of any post or office in connexion with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new State or an Union territory, should, except where by virtue or in consequence of the provision of the Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new State or Union territory in which such area is included on that day, and should be deemed as from that day to have been appointed to such post or office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such Union territory as the case may be. But, nothing in that section should be deemed to prevent a competent authority after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office.

17. Though in the petitions some reliance was placed on S. 116 to show that as a result of the impugned decision the petitioners' rank is reduced at the time of the hearing, none of the learned counsel appearing for the parties relied on that provision in support of the above contention. Hence, it is unnecessary to say more about it.

18. The plea that the impugned decision results in reduction of the rank of the petitioners and the reduction in question having been effected without following the mandates contained in Art. 311(2) of the Constitution, the same has to be struck down as not urged at the hearing. That plea has no substance as held in Samuel v. State of Kerala : AIR1960Ker231 . We are in respectful agreement with that decision.

19. Section 117 confers power on the Central Government to issue such directions so may appear to it to be necessary for the purpose of giving effect to the provisions of Part X. The State Government is bound to comply with such directions. Section 118 deals with Public Service Commissions. For our present purpose, we are not concerned with that provision. This leaves us with S. 115. As that section is important for our present purpose, we shall quote the same in full. It reads :

'115. Provisions relating to other services. -

(1) Every person who immediately before the appointed day is serving in connexion with the affairs of the Union under the administrative control of the Lieutenant-Governor or Chief Commissioner in any of the existing States of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connexion with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connexion with the affairs of the successor State to that existing State.

(2) Every person who immediately before the appointed day is serving in connexion with the affairs of an existing State part of whose territories is transferred to another State by the provisions of Part II shall, as from that day, provisionally continue to serve in connexion with the affairs of the principal successor State to that existing State, unless he is required by general or special order of the Central Government to serve provisionally in connexion with the affairs of any other successor State.

(3) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in Sub-section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.

(4) Every person who is finally allotted under the provisions of Sub-section (3) to a successor State shall, if he is not already serving therein, be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in default of such agreement, as may be determined by the Central Government.

(5) 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 representations made by such persons.

(6) The foregoing provisions of this section shall not apply in relation to any person to whom the provisions of S. 114 apply.

(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chap. I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connexion with the affairs of the Union or any State : Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in Sub-section (1) and (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.'

20. In view of Sub-section (1) of S. 115, officers mentioned therein are deemed to have been allotted to serve in connexion with the affairs of the successor State to that existing State. Sub-section (2) of that section provides that every person who immediately before the appointed day was serving in an existing State part of whose territories was transferred to another State by the provisions of Part II of the Act should as from that day, provisionally continue to serve in connexion with the affairs of the principal successor State to that existing State, unless he was required by general or special order of the Central Government to serve provisionally in connexion with the affairs of any other successor State. Sub-section (3) empowers the Central Government to determine by general or special order, the successor State to which every person referred to in Sub-section (2) Should be finally allotted for service and the date with effect from which such allotment took effect or be deemed to have taken effect. Sub-section (4) thereof fixes the date from which the allotted Government servant should be made available to the successor State. We shall keep aside for the present Sub-section (5) for separate treatment as that is the crucial sub-section arising for consideration in these cases; Sub-section (6) lays down that S. 115 does not apply to any person to whom the provisions of S. 114 apply. Sub-section (7) is a saving clause. It says that nothing is S. 115 should be deemed to affect after the appointed day the operation of the provisions of Chap. I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connexion with the affairs of the Union or any State : Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in Sub-section (1) or Sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.

21. As seen from Sub-secs. (2) and (3) of S. 115, the Act specifically confers power on the Central Government to divide the services of an existing State and allot some of its officers to one or the other of the successor States. But it does not, by specific words, confer any power on the Central Government to integrate the services of the new States. All the same it empowers the Central Government by order to 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 of Andhra Pradesh and Madras, and

(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of S. 115 and the proper consideration of any representations made by such persons.

22. From these provisions it follows as a necessary inference that the Central Government is charged with the duty of integrating the services in the new States and the States of Andhra Pradesh and Madras, to ensure fair and equitable treatment to all persons affected by the provisions of S. 115 and to properly consider any representation made by such persons. There was no point in Parliament empowering the Central Government to appoint advisory committees to assist it in the matter of integrating the services in the States mentioned in S. 115(5) if it is not its duty to do so. Despite the imperfect language employed in Sub-section (5) of S. 115, this Court has come to the conclusion in M. A. Jaleel case [A.I.R. 1961 Mys. 210] (vide supra) that the said provision transmitted the power to integrate the State Services mentioned in that section exclusively to the Central Government, and that power is an original power and not an appellate power. This Court has come to the conclusion that in view of S. 115(5) the concerned State Governments are deprived of their executive power available to them under Art. 162 of the Constitution in the matter of integrating their services. A Special Bench of the Gujarat High Court in A. J. Patel and Others v. State of Gujarat [I.L.R. 1963 Guj. 1204] has also taken the view that Parliament has entrusted the functions which are enumerated in Sub-section (5) of S. 115 to the Central Government in regard to integration of services. But, differing from this Court it held that S. 115(5) has in no manner altered the power of the State Government to integrate its services. In view of the decision of this Court in Jaleel case [A.I.R. 1961 Mys. 210] (vide supra) we have to proceed on the basis that the power conferred on the Central Government under S. 115(5) is an original power and that power is an exclusive power. That position was not challenged before us at the hearing of these cases.

23. Now we come to the question whether the power conferred on the Central Government under S. 115(5) is a quasi-judicial power or an administrative power. The dividing line between an administrative power and quasi-judicial power is sometimes very thin and imperceptible. The controversy bearing on the subject is an ancient one. There is a catena of decisions on that subject. We are free to confess that some of the decisions cited before us cannot be easily reconciled. But, our Supreme Court has accepted as correct the statement of law laid down in Rex v. Electricity Commissioners [(1924) 1 K.B. 171], wherein it was said that

'wherever any body of persons having legal authority to determine questions affecting rights of subject and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs' [see Province of Bombay v. Khushaldas S. Advani : [1950]1SCR621 ; Board of High School v. Ghanashyam Das Gupta and Others : AIR1962SC1110 and Brajlal Manilal & Co. v. Union of India : [1964]7SCR97 .

24. As mentioned earlier, under S. 115(5) of the Act, the Central Government has legal authority to determine the question of equation and seniority. That determination is bound to affect the rights of several public servants. Thus far, there is no difficulty. The only remaining question is whether the Central Government is required by the provisions of the Act to act judicially. The Act does not say so in specific words. As observed by the Supreme Court in Board of High School case : AIR1962SC1110 (vide supra) hardly any statute is likely to provide in so many words that the authority deciding the question is required to act judicially. This is a matter to be inferred from the provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively.

25. We shall now proceed to consider whether the power conferred on the Central Government under S. 115(5) of the Act is a judicial power, by applying the tests above enumerated. There is hardly any doubt that whatever the decision of the Central Government may be in the matter of integration, in the very nature of things, it is bound to adversely affect one or the other of the sections of the public services of the State. The question of integration of services in the new States is a very complicated question. As mentioned earlier, their service conditions in their parent States vastly differed, their designations were different, their duties and functions were not identical and their pay-scales differed from State to State. Therefore, to fit in the personnel drawn from different States into one cadre is by no means an easy job. Any erroneous decision is likely to blast the future of numerous public servants. Hence, it cannot be denied that the decision of the Central Government has far reaching effect, as the same is likely to affect the future prospects of several public servants.

26. Section 115(5) of the Act does not say that the decision or the conclusion reached by the Central Government is final or conclusive or that the same cannot be questioned in Courts of law. On the other hand the Act enjoins on the Central Government to ensure fair and equitable treatment to all persons affected by the provisions of S. 115 and further it is required to give proper consideration to any representations made by such persons. These are essentially contents of a judicial power. We are unable to agree with the learned counsel for the respondents that the expressions 'fair and equitable treatment' and 'the proper consideration of any representations made by such persons' do not lay down any objective criteria. It may be that the 'fair and equitable treatment' is a requisite of any power be it administrative or judicial as contended by Sri Purushothamdas, the learned counsel for some of the respondents, but when a statute enjoins an authority to act fairly and equitably, it is reasonable to infer that the power conferred is a quasi-judicial power. The procedure prescribed indicate that the power conferred is a judicial power. The test of 'fair and equitable treatment' is an objective test. It may be that it is capable of misuse. But, that does not mean that it is not an objective test. Every reasonable person knows what is fair and what is equitable. Whether in a given case the decision given is fair or equitable depends on the facts of each case. But, there is no question of any subjective satisfaction.

27. The Central Government has laid down clear tests for equating the posts and determining seniority. At a meeting of the representatives of the concerned States held on 18 and 19 May, 1956, it was agreed that in considering 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;

(iv) the salary of the post.

28. It was agreed that in determining relative seniority as between two persons holding posts declared equivalent to each other, and drawn from different States, the following point 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 arrangements.

(ii) Age of the person, other facts 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 officers drawn from the same State should not be disturbed.

29. These are undoubtedly objective standards. None of the parties appearing before us questioned the correctness of the tests mentioned above. It is not difficult to find out whether a given case has been decided on the basis of the above tests or not.

30. Taking into consideration, the nature of the power conferred on the Central Government under S. 115(5) of the Act the manner in which it is required to be exercised and the effect of the exercise of that power, we are of the opinion that the power in question is a quasi-judicial power and hence its exercise is open to judicial review.

31. Sri M. K. Nambiar, the learned counsel for the petitioners, contended that even if the power conferred on the Central Government under S. 115(5) of the Act is considered to be an administrative power, that power also is subject to the doctrine of ultra vires. The exercise of that power in the cases before us is liable to be struck down as it was not done in accordance with the requirements of S. 115(5). In support of his contention he read to us various passages from Prof. Wade's 'Administrative Law' (1961 Edn.). He contended that administrative powers are derived from statutes. Those statutes give power for certain purposes only, or subject to some special procedure, or with some other kind of limits. The limits are to be found not only in the statute itself, but in the general principles of construction which the Courts apply, provided, of course, that the statute has not expressly or impliedly modified them - for every statute is an act of sovereign legislation and can abrogate all principles of administrative law if legislature so wishes. If in practice powers are carefully defined, any act outside the defined limits (ultra vires) is an act unjustified by law. Even if the authority has undoubted power to do something, there may be doubts as to how it is to be done. The ultra vires doctrine is therefore not confined to cases of plain excess of power; it also governs abuse of power, as where something is done for the wrong reasons, or by the wrong procedure. In law the consequences are exactly the same : an improper motive, or a false step in procedure, makes an administrative act just as illegal as does a flagrant excess of authority.

32. It was urged that if an empowering statute requires the exercise of a power in a particular manner that power has to be exercised in accordance with the procedure laid down in the statute but not otherwise; any departure from it will invalidate the exercise of the power. The contention of Sri Nambiar was that before finalizing the orders as regards the equation of posts and the determination of seniority in a cadre, it was the duty of the Central Government to have notified the parties concerned, the substance of the representations received which if accepted would affect their interest. That according to Sri Nambiar is the requirement of Clause (b) of Sub-section (5) of S. 115 of the Act. He contended that as that requirement had not been fulfilled, the very exercise of the power is vitiated being hit by the doctrine of ultra vires. As we have come to the conclusion that the power in question is a judicial power, we have not thought it necessary to examine these contentions of Sri Nambiar, as the extent of judicial review is much wider in the case of a judicial power than in the case of an administrative power.

33. Next question for consideration is whether the reliefs claimed in these petitions should be denied as they pertain to tentative conclusions which in law are yet to be finalized.

34. As regards the procedure to be followed in the matter of equation of posts and determination of seniority, the Central Government has not taken a consistent stand. In the beginning it appears to have taken the view that the power conferred on it under S. 115(5) of the Act is in the nature of an appellate power. At one stage it asked the concerned State Government to decide those questions themselves leaving it to the aggrieved parties to appeal to the Central Government against the decision of the State Governments. Because of these instructions the State of Mysore, in several cases, not only prepared provisional seniority lists, but also finalized those lists after hearing the objections of the concerned parties. This Court, in Jaleel case [A.I.R. 1961 Mys. 210] (vide supra) as seen earlier, came to the conclusion that the State Government had no competence either to decide the question of equation of posts or to prepare a seniority list; that power is exclusively given to the Central Government and the power given to the Central Government is not an appellate power but an original power. After the decision of this Court in Jaleel case [A.I.R. 1961 Mys. 210] (vide supra) the Central Government seems to have instructed the State Governments to prepare and publish provisional seniority lists, then call for objections from the aggrieved parties and thereafter send up all the relevant papers to the Central Government for its decision. This may be a good workable rule. But the list prepared by the State Government has no legal basis. At best the information collected by the State Government can only serve as data for the Central Government which is charged with the duty of integrating the services. The objections contemplated by S. 115(5) is to the integration proposed by the Central Government. The learned Attorney-General, in our opinion very rightly, did not support the stand taken by the Central Government in its pleading that the impugned decision is, in law a final decision. According to him, the impugned decision is merely a provisional decision; the affected persons must be hereinafter given an opportunity to make their representations on the proposal made by the Central Government; the Central Government will have to consider those representation with the aid of the advisory committee and then come to a final decision on the matters in dispute. This appears to be the true scope of S. 115(5) of the Act. Clause (b) of S. 115(5) says that the Central Government may be order establish one or more advisory committees for the purpose of assisting it in regard to the ensuring of fair and equitable treatment to all persons affected by the provisions of S. 115 and the proper consideration of any representations made by such persons. As seen earlier, the said S. 115 empowers the Central Government to divide the services in the parent States and to integrate the services in the new States. That section has nothing to do with State Governments. It takes into consideration only the division and integration made by the Central Government and not that made by the State Governments. The advisory committee constituted by the Central Government should assist the Central Government in regard to the ensuring of fair and equitable treatment to those affected by the provisions of S. 115. No person can be affected by the provisions of S. 115 by any equation of posts or the preparation of seniority list made by a State Government. It is only persons who are affected by the equation of posts made and seniority determined by the Central Government that are entitled to make representations under Clause (b) of S. 115(5) of the Act. Whatever has been done by the State Government has been done outside the scheme of S. 115. Therefore, any representation called for in respect of the steps taken by the State Government is not a representation contemplated by S. 115(5) of the Act.

35. For these reasons, we accept the contentions of the learned Attorney-General that the impugned decision of the Central Government though purports to be a final decision is really a provisional decision. The affected persons have a right to make representations against it. The representations made by them will have to be considered by the Central Government with the assistance of the advisory committee and thereafter the Central Government should arrive at a final decision.

36. This takes us to the question whether the impugned decision is liable to be struck down. As we have come to the conclusions that it is only a preliminary decision and that the same is open to review by the Central Government on the basis of the representations received, there can be no question of striking down that decision. But, all the same we think it desirable to notice some of the contentions advanced by the parties as the same may be of assistance to the Central Government in arriving at a final decision.

37. It was urged on behalf of the petitioners that the impugned decision is liable to be struck down as the same was reached without giving adequate opportunity to the affected persons to represent their case. In the cases before us, as seem earlier, the State Government equated the posts of the Assistant Conservator of Forests allotted from the former States of Mysore and Madras with that of the Deputy conservators of Forests allotted from the former State of Bombay and Hyderabad. Thereafter there was some revision on the basis of the advice tendered by Sri Dutt. It was said on behalf of the petitioners that they were not aggrieved either by the equation initially made by the State Government or by the revision effected on the advice of Sri Dutt; therefore, they did not make any representation to the Central Government. On the other hand, the Deputy Conservators of Forests allotted from the former States of Bombay and Hyderabad made representations against the equation made. The grievance of the petitioners is that those representations were not made known to them nor were they given any opportunity to have their say on those representations. They complain that the Central Government had come to a decision on the basis of the one-sided version presented to it. The fact that the representations received or their substances were not communicated to the petitioners is not denied. But what was said on behalf of the Central Government is that the representations received by it were nothing new. They were the very representation made before the State Government. Those representations had been considered by Sri Dutt. Further, after the Central Government reached its decision, the Chief Minister of Mysore, by his letter dated 18 March, 1963, had placed before the Home Minister of India, the case of the petitioners and the case put forward before the Court now by the petitioners does not differ in any manner from that put forward on their behalf by the Chief Minister. At the instance of the Chief Minister, the Central Government with the aid of the advisory committee re-examined the matter but came to the conclusion that its earlier decision was just and proper. Hence it was urged that there is really no substance in the grievance of the petitioners that the Central Government had reached the impugned decision on the basis of an one-sided version.

38. In view of our earlier conclusion, that the decision of the Central Government is only a preliminary decision, the petitioners should have further opportunity to make representations against that decision, and a final decision reached thereafter, the contention of the petitioners that the impugned decision was reached on the basis of an one-sided representation does not arise for consideration. In view of the stand taken by the Central Government in its pleadings, to avoid any further difficult, we propose to direct the Central Government to give the affected persons opportunity to make representations against the impugned decision and come to a final decision after examining their representations.

39. It was contended on behalf of the petitioners that the decisions of the Central Government impugned in these cases does not accord with the four objective tests formulated at the conference of the representatives of the concerned Stated held in May 1956. It was said that Assistant Conservators of Forests of the former Mysore and Madras States and the Deputy Conservators of Forests of the former Bombay and Hyderabad States were mainly drawn from those who passed out from the Dehra Dun Forest College; hence by and large their qualifications were identical; all of them were Divisional Forest Officers in charge of divisions; their responsibilities as well as the powers exercised by them were more or less same; the extent of their charge depended upon the division to which they were posted; in all the States there are big as well as small forest divisions; the question of posting to any particular division depended on exigencies of service; in finding out the extent of the jurisdiction, area of the division is not the sole or even the important test; what is important is the nature of the duties discharged. Coming to the scale of pay, we were told that it differed from State to State; in Bombay which was a rich State, the scale of pay was and continues to be much higher than Mysore and Madras; the scale of pay in the former Madras State was higher then that of the erstwhile Mysore State; if the salary test gains predominance over the other tests, then in all services the superior posts are bound to be filled up mostly if not exclusively from officers drawn from the former Bombay, Hyderabad and Madras States. We were told that scales of pay of several services were the highest in the former Hyderabad State. According to the petitioners, the salary test comes last and it ought to come up for consideration only when the other tests do not yield any conclusive result. The anomaly in the equation made and the injustices suffered by the officers allotted from the erstwhile State of Mysore was graphically illustrated by referring to the case of Sri Sharma, who is petitioner 6, in Writ Petition No. 2186 of 1963. Sri Sharma was a lecturer in the Indian Forest College in 1947-48; at that time respondents 4 and 5 in Writ Petition No. 2186 of 1963 were students in that college; in 1955 he was the Dean of that college; respondents 6 and 9 in Writ Petition No. 2186 of 1963 were his students then; respondent 8 therein was also his students in that college; as per the impugned equation those officers, namely, respondents 4, 5, 6, 8 and 9, are placed in the cadre of Deputy Conservators of Forests (category III), whereas Sri Sharma has been placed in the cadre of Assistant Conservators of Forest (category IV). It was said that the decision of the Central Government if implemented would result in large number of senior and experienced officers placed under their own juniors. There is no doubt that some of the petitioners joined service in the former State of Mysore very many years before some of the respondents joined service. It is also true that by the impugned equations the Assistant Conservators of Forests allotted from the erstwhile State of Mysore are equated with their own subordinates, i.e., the Sub-Assistant Conservators of Forests - a clear case of down-grading.

40. On the other hand, it was urged on behalf of the Central Government that it had acted in a bona fide manner; its bona fides has not been questioned at all; it was solely guided by the advise tendered by the advisory committee, a body of eminent persons; in those circumstance, whether its decisions is right or wrong, the same cannot be questioned. It was further said on its behalf that the problems created by the reorganization of States are so complex as to make it impossible for anyone to arrive at a conclusion satisfactory to all; the problems posed have their own dimensions; they vastly differ from one another; hence there can be no readymade solution; sometimes it is a question of cutting the Gordian Knot. It was denied that the equations made are not in accordance with the decision reached at the conference held in May 1956. The Central Government in its counter-affidavit says that following were the reasons which persuaded the advisory committee in making its recommendation on the question of equation of posts :

'(i) It will not be correct to base equation on the length of service in any particular grade. Length of service is relevant for the purpose of fixing rank of an officer in the equated grade.

(ii) Though there were no difference in the nature of duties and responsibilities between Senior Assistant Conservators and Assistant Conservators of Mysore and the only difference was regarding the salary scale, the Assistant Conservators had to be promoted to the grade of Senior Assistant Conservator before he could be considered for promotion to the grade of Conservator.

(iii) Appointments to the grade of Assistant Conservators were to be made by promotion from the grade of Sub-Assistant Conservators which were the posts to which direct recruits trained at the Forest College, Dehra Dun, were appointed.

(iv) The position of Senior Assistant Conservators of Forests who attained their position after having gone through the grades of Sub-Assistant Conservators and Assistant Conservators, as also the superior position of the Deputy Conservators of Forest of Bombay and Hyderabad cannot be ignored.'

41. None of these reasons has any application to the case of the Assistant Conservators of Forests allotted from the former State of Madras. It may be remembered that those Assistant Conservators of Forests have been equated with the Assistant Conservators of Forests allotted from the former State of Mysore. Admittedly, so far as the Divisional Officers were concerned there were no differences in the nature of their duties and responsibilities. The reasons which influenced the Central Government, as seem from its counter-affidavit in differentiating between these officers, are :

(i) Assistant Conservators of Forests had to be promoted to the grade of Senior Assistant Conservators of Forests before they can be considered for promotion to the cadre of Conservators.

(ii) Appointment to the grade of Assistant Conservators of Forests had to be made by promotion from the grade of Sub-Assistant Conservators of Forests which were the posts to which direct recruits trained at the Forest College, Dehra Dun, were recruited.

(iii) The Senior Assistant Conservators of Forests attained their position after having gone through the grades of Sub-Assistant Conservators.

42. None of those reasons apply to the case of Assistant Conservators of Forests allotted from the former State of Madras. In that State, we were told, the Assistant Conservators of Forests were mostly directly recruited. There was no cadre of Sub-Assistant Conservators of Forest in that State. Assistant Conservators of Forests were promoted as Conservators of Forests. In that State, there was no cadre of Senior Assistant Conservators of Forest. These aspects appear to have been wholly lost sight of by the advisory committee. On the basis of the reasons given by the advisory committee, as well as on the basis of the four tests laid down prima facie, the Assistant Conservators of Forest allotted from the former State of Madras should have been equated with the posts of Deputy Conservators of Forests allotted from the former States of Bombay and Hyderabad. It was stated in the affidavit of the petitioner in Writ Petition No. 2574 of 1963 that the Assistant Conservators of Forests allotted from the former State of Madras to the State of Andhra Pradesh have been equated with the Deputy Conservators of Forests allotted from the erstwhile Hyderabad State. This fact was not denied. If that allegation is true, than the error in the decision of the Central Government becomes obvious. We are pointing out these aspects just to bring to the notice of the Central Government that the problem requires further examination and a closer scrutiny. We are aware of the difficulties inherent in the situation. But the question is one of utmost importance to the concerned officers. To some of them it may mean a total blasting of their future. We do not wish to say more at this stage.

43. Now coming to Writ Petition No. 2574 of 1963, by and large, his grievances are similar to that of the other petitioners. We have already dealt with those grievances. One other grievance of his is that the post held by him on the date of the reorganization was wrongly equated with the posts of the Sub-Assistant Conservators of Forests of the former State of Mysore. He was directly recruited as an Assistant Conservator of Forests in the year 1953. On the date of the reorganization, he was serving as an Assistant to the District Forest Officer at Mangalore. At that time in South Kanara district, there were two Assistant Conservators of Forests. The senior amongst them was the District Forest Officer and the junior his assistant. The petitioner had not completed his probation on the data of the reorganization of the States. Our attention has not been drawn to any rule to show that there was anything like a cadre of probationary Assistant Conservators of Forests in the former State of Madras. Ordinarily the officers on probation are borne on the cadre to which they are appointed. By the equation made, prima facie, the petitioner's rank has been reduced. The order equating his post to that of the Sub-Assistant Conservators of Forests, prima facie appears to be unjustifiable. The Central Government has offered no explanation in that regard. It appears to be a case of oversight. The State Government did not file any counter-affidavit till the date of hearing. On the date of the hearing of these cases a counter-affidavit was sought to be filed. The same was rejected as being highly belated. But yet we find in the records that counter-affidavit. We have not looked into it. Further the State Government cannot be in a position to speak for the Central Government which alone is legally responsible for the equation.

44. The case of the petitioner in Writ Petition No. 53 of 1964 is, that whatever may be the position of the Assistant Conservators of Forests allotted from the former State of Mysore so far as the Assistant Conservators of Forests allotted from the former State of Madras are concerned, their posts should have been equated with the posts of Deputy Conservators of Forests allotted from the former States of Bombay and Hyderabad. These aspects we have already dealt with. Hence, there is no need to go into that question over again.

45. For the reasons mentioned above though we refuse to grant the reliefs prayed for in these petitions, at the same time, we direct the Central Government to give the petitioners an opportunity to make representations against the equation of posts proposed, consider their objections with the aid of the advisory committee and thereafter arrive at a final decision as regards the integration in dispute.

46. In the circumstances of these cases, we make no order as to costs.


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