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Narayan Seshayya Naik Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 12 of 1965
Judge
Reported in(1969)IILLJ1Kant; (1968)2MysLJ299
ActsStates Reorganization Act, 1956 - Sections 115, 115(5) and 116(1); Mysore Secretariat Services (Recruitment) Rules, 1957; Mysore State Civil Services (General Recruitment) Rules, 1957 - Rule 16; Mysore Government Servants' (Seniority) Rules, 1956 - Rule 6; Constitution of India - Articles 226 and 309
AppellantNarayan Seshayya Naik
RespondentState of Mysore and ors.
Excerpt:
- section 20 & contempt of courts act (70 of 1971), sections 11 & 12: [s.r. bannurmath & a.n. venugopala gowda, jj] penalty for disobedience - disobedience of order passed by karnataka information commission maintainability of contempt petition - held, section 20 of rti act itself provides for remedy. under section 20 of rti act commission is vested with power to penalize defaulting officer by imposing penalty up to rs. 25,000/- and also recommend for disciplinary action against him. thus commission is empowered to enforce its own order. remedy being available under rti act itself, contempt petition under contempt of courts act, 1971 is not maintainable. - 6. since the names of respondents 11 and 12 are included in the provisional inter-state seniority list referred to above, and.....ordergovinda bhat, j1. in this writ petition preferred under art. 226 of the constitution of india, the petitioner has challenged the transfer to, and absorption in, of respondents 2 to 12 in the cadre of assistants in the mysore secretariat service, and giving them seniority and promotion over the petitioner. the facts so far as they are material may be briefly stated. 2. the petitioner who had entered service as an assistant in the bombay secretariat service on 17 october, 1955, was allotted to the new state of mysore consequent on the reorganization of states and since then, he has been serving in the mysore government secretariat. respondents 2 to 10 with the exception of respondents 8 and 9 were serving in the translation department of the erstwhile state of mysore, and respondents 8.....
Judgment:
ORDER

Govinda Bhat, J

1. In this writ petition preferred under Art. 226 of the Constitution of India, the petitioner has challenged the transfer to, and absorption in, of respondents 2 to 12 in the cadre of assistants in the Mysore Secretariat Service, and giving them seniority and promotion over the petitioner. The facts so far as they are material may be briefly stated.

2. The petitioner who had entered service as an assistant in the Bombay Secretariat Service on 17 October, 1955, was allotted to the new State of Mysore consequent on the Reorganization of States and since then, he has been serving in the Mysore Government Secretariat. Respondents 2 to 10 with the exception of respondents 8 and 9 were serving in the Translation Department of the erstwhile State of Mysore, and respondents 8 and 9 are allottees from the erstwhile States of Hyderabad and Madras respectively, to the new State of Mysore under S. 115 of the States Reorganization Act, 1956, hereinafter called the Act. Respondent 1, the State of Mysore, prepared and published on 18 November, 1957, under the directions of the Central Government, a provisional inter-State seniority list of first division clerks in the Mysore Government Secretariat. The petitioner's ranking in the said list is serial No. 323. The said list was revised on 11 May and 29 September, 1962. The names of respondents 2 to 10 were not included in the provisional inter-State seniority list of the first division clerks in the Mysore Government Secretariat. The petitioner's ranking in the said list is serial No. 323. The said list was revised on 11 May and 29 September, 1962. The names of respondents 2 to 10 were not included in the provisional inter-State seniority list of the first division clerks in the Mysore Government Secretariat; but their names were included in the provisional inter-State seniority list of the Department of Translation published on 23 November, 1957. The names of respondents 11 and 12 were included in the provisional inter-State seniority list of first division clerks in the Mysore Government Secretariat, published on 18 November, 1957, and the subsequent revised its. In the first list, their ranking was Nos. 259 and 260, respectively. In the remarks Col. 7 it is stated that respondent 2 is on deputation from the Revenue Department.

3. The office of the Kannada Translator to Government was reorganized by order of the Government made in No. GAD 13 TAR 57 dated 24 August, 1959 consequent on the said reorganization, there was surplus staff of 1 gazetted officer and 18 class III officials. Respondents 2 to 10 who were first division clerks in the office of the Kannada Translator to Government, were transferred to the Mysore Government Secretariat against the existing vacancies and were directed to be absorbed there with effect from 1 October, 1959. The petitioner having challenged the said order, it is necessary to set out the same. It reads :

'Reorganization of the office of the Kannada Translator to Government - Absorption and transfer of surplus staff

Government of Mysore [General Administration Department (O&M;)]

Read :

Government Order No. GAD 13 TAR 57, dated 24 August, 1959, ordering the reorganization of the office of the Kannada Translator to Government.

2. Correspondence ending with letter No. KTO 255 dated 19 September, 1959 from the Kannada Translator to Government.

Government Order No. GAD 13 TAR 57, dated Bangalore, 30 September 1959 (Aswija 8, Saka Era, 1881).

Consequent on the reorganization of the office of the Kannada Translator to Government, there will be a surplus staff of 1 gazetted officer and 18 officials of class III. The following officials are transferred to the Mysore Government Secretariat against existing vacancies and will be absorbed there with effect from 1 October, 1959 :

(1) Sri V. Gururajan, first division clerk, on other duty in Census Department till February 1960,

(2) Sri M. V. Govindayya,

(3) Sri Lakshman Rao S. Jagirdar,

(4) Sri S. Ramachandrachar,

(5) Sri H. Venkateshayya,

(6) Sri B. S. Subbaraya Sastri,

(7) Sri H. M. R. Gowda,

(8) Sri B. Ramu,

(9) Sri N. R. Balehosur (already working in M.E.S.), and

(10) Sri K. Keshava Rao,

all first division clerks.

Sri K. Keshava Rao, Sri Anantapadmanabha Rao, Sri Hanumanthachari and Sri S. M. Kodakani, first division clerks, are also transferred to the establishment of the Mysore Government Secretariat, but the transfer will take effect from 1 November, 1959. Till then, they will continue as first division clerks on the establishment of the Chief Translator to Government. The creation of four supernumerary posts of first division clerks for a month from 1 October, 1959 for this purpose is sanctioned . . .'

4. By order No. GAD 38 ASA 60 dated 11 April, 1960, the seniority of respondents 2 to 10, among others, was fixed in the cadre of first division clerks (assistants) of the Mysore Government Secretariat. The said order reads :

'PROCEEDINGS OF THE GOVERNMENT OF MYSORE.

Read :

(1) G.O. No. GAD 13 TAR 57 dated 24 August, 1957.

(2) G.O. No. GAD 13 TAR 57 dated 30 September, 1959.

(3) G.O. No. GAD 13 TAR 57 dated 29 October, 1959.

(4) Letter No. S. 3639/59-60/PSC, dated 8 March, 1960, from the Secretary, Public Service Commission.

Order No. GAD 38 ASA 60, dated Bangalore, 11 April 1960 (Saka Era 1881).

In Government Order dated 24 August, 1957 read at (1) above the office of the Kannada Translator to Government was reorganized and in the Government orders dated 30 September and 29 October, 1959 read at (2) and (3) above, the under-mentioned first division clerks of the Kannada Translator's office consequent on its reorganization were ordered to be absorbed in the Mysore Government Secretariat.

(1) Sri V. Gururajan,

(2) Sri M. V. Govindayya,

(3) Sri Lakshman Rao S. Jagirdar,

(4) sri S. Ramachandrachar,

(5) Sri H. Venkateshayya,

(6) Sri B. S. Subbaraya Sastri,

(7) Sri H. M. R. Gowda,

(8) Sri B. Ramu,

(9) Sri N. R. Balehosur,

(10) Sri K. Keshava Rao,

(11) Sri U. Ananthapadmanabha Rao,

(12) Sri V. S. Joshi, and

(13) Sri Hanumanthachari.

of the above 13 first division clerks, Sri V. Gururajan is now on other duty in the office of the Census Commissioner. The other 12 have joined duty and are now working in the Mysore Government Secretariat. The seniority of the first division clerks has to be fixed in the inter-State seniority list of assistants of the Mysore Government Secretariat.

In accordance with rule 6 of the seniority rules issued in Notification No. GAD (O&M;) 15 GRR 57, dated 7 February, 1958, and on the basis of the date of their promotion to the grade equated to first division the ranking of these officials in the inter-State seniority list of first division clerks (assistants) of the Mysore Government Secretariat will be as noted below :-

Serial Names of Dates of entry Date of First divisionnumber assistants into service promotion to serial numberto the grade to be assignedequated to in the inter-State senioritylist of firstdivision clerksof Mysore GovernmentSecretariat Below Sl. No. 1 S. Ramachandrachar ... 20 March, 20 March, 240 as 240 (a)1950 1950 2 V. S. Joshi ... 14 October, 14 October, 165 as 165 (a)1947 1947 3 N. R. Balehosur ... 19 February, 19 February, 255 as 255 (a)1951 1951 4 H. Venkateshayya ... 28 August, 28 August, 269 as 269 (a)1952 1952 5 B. S. Subbaraya ... 21 November, 21 November, 281 as 281 (a)Sastri 1953 19538 January, 1954 6 B. Ramu ... 10 February, 10 February, 284 as 284 (a)1954 1954 7 H. M. R. Gowda ... 15 February, 15 February, 284 (a) as 284 (b)1954 1954 8 Hanumanthachari ... 2 March, 2 March, 284 (b) as 284 (c)1954 1954 9 K. Keshava Rao ... 7 August, 7 August, 291 as 291 (a)1954 1954 10 Lakshman Rao S. 1 October, 10 October, 300 as 300 (a)Jagirdar. 1954 1954 11 U. AnanthapadmanabhaRao ... 20 December, 20 December, 301 as 301 (a)1954 1954 Sri M. V. Govindayya joined service on 11 September, 1944 as head clerk on Rs. 40 - 2 - 50 in office of the Amildar Chikkanayakanahalli. Subsequently he was appointed as second division clerk on Rs. 30 - 3 - 60 - 5 - 100 in the office of the Kannada Translator to Government on 10 May, 1946. Since the grade of second division clerk in Mysore Government Secretariat during that period, i.e., in 1946, was Rs. 30 - 3 - 60 - 5 - 100, i.e., higher than that in subordinate offices, the seniority of Sri M. V. Govindayya has to be reckoned with reference to the date of his entry into service in the Kannada Translator's office, viz., 10 May, 1946, and also with reference to the date of his promotion as first division clerk, viz., 1 January, 1947. In accordance with the above principles, Sri M. V. Govindayya has to be ranked below the last person who entered service in Mysore Government Secretariat on 10 May, 1946 and who was promoted as first division clerk 1 January, 1947. On this basis Sri M. V. Govindayya has to be ranked below serial No. 111 in the inter-State seniority list of first division clerks (assistants) of the Mysore Government Secretariat.

The Secretary, Public Service, Commission, in his letter dated 8 March, 1960 read at (4) above has communicated the concurrence of the Commission to the fixation of the seniority of the above first division clerks as indicated above.

Sanction is therefore accorded to fix the seniority of the above first division clerks in the inter-State seniority list of first division clerks (assistants) of Mysore Government Secretariat as noted below :

No. Names Rank assigned in theinter-State senioritylist of the first divisionclerks of Mysore GovernmentSecretariat Sl. No. 1 M. V. Govindayya ... ... ... 111 (a) 2 V. S. Joshi ... ... ... 165 (a) 3 S. Ramachandrachar ... ... ... 240 (a) 4 N. R. Balehosur ... ... ... 259 (a) 5 H. Venkateshayya ... ... ... 269 (a) 6 B. S. Subbaraya Sastri ... ... .... 281 (a) 7 B. Ramu ... ... ... 284 (a) 8 H. M. R. Gowda ... ... ... 284 (b) 9 Hanumanthachar ... ... ... 284 (c) 10 K. Keshava Rao ... ... ... 291 (a) 11 Lakshman Rao S.Jagirdar ... ... ... 300 (a) 12 U. AnanthapadmanabhaRao ... ... ... 301 (a) The seniority of Sri V. Gururajan who is on other duty in the office of the Census Commission will be fixed separately.

(By order and in the name of the

Governor of Mysore)

(Sd.) KHAJA GULAM GOHAR ALI KHAN,

Under Secretary to Government

(G.A.D.) (Admn. 2).'

8. On 10 November 1964, in their proceedings No. GAD 139 ASA 64 (I), respondent 1 promoted respondents 2 and 11 temporarily to officiate as senior assistants in the scale of Rs. 200 - 400 on the basis of seniority-cum-efficiency. The relevant portion of the said order reads.

No. GAD 139 ASA 64 (I)

'GOVERNMENT OF MYSORE

Mysore Government Secretariat,

'Vidhana Soudha'

Bangalore, dated 10 November, 1964

Official memorandum

[Subject. - Promotion as senior assistants in Mysore Government Secretariat.]

Reference. -

(1) Notification No. GAD 34 ORR 63, dated 13 April, 1964.

(2) G.O. No. GAD 53 SSR 64, dated 20 April, 1964.

(3) G.O. No. GAD 55 SSR 64, dated 29 September, 1964.

(4) O.M. No. GAD 139 ASA 64 (1), dated 8 October, 1964.

(5) O.M. No. GAD 207 ASA 64, dated 13 October, 1964.

Pending finalization of the inter-State seniority lists of class III staff in the Mysore Government Secretariat, the assistants, shown in the annexure to this order, are promoted temporarily to officiate as senior assistants in the scale of Rs. 200-10-280-15-400 on the basis of seniority-cum-efficiency in accordance with the Mysore Secretariat Services (Recruitment) Rules, 1957, as amended in Notification No. GAD 34 ORR 63, dated 13 April, 1964.

2. The promotions ordered herein are purely provisional subject to review after finalization of the inter-State seniority list.'

5. On 17 December, 1964, the petitioner filed the above writ petition challenging the above orders.

6. Since the names of respondents 11 and 12 are included in the provisional inter-State seniority list referred to above, and they have been ranked above the petitioner, in all the lists, Sri Datar, the learned counsel for the petitioner, did not press his petition against the said respondents 11 and 12.

7. The learned Government Pleader raised a preliminary objection that the petitioner is guilty of serious laches in challenging the impugned orders dated 30 September, 1959 and 11 April, 1960 and that, on that ground alone, his petition should fail. The petitioner has explained in his affidavit that the said orders of 1959 and 1960 were not published, that he had no knowledge of the same, and that it was only when respondent 2 was promoted by the order made on 10 November, 1964, on the basis of the provisional inter-State seniority list ranking respondent 2 as serial No. 240 (a) that the petitioner came to know of the impugned order and he filed the writ petition on 17 December, 1964. Respondent 1, the State, has not filed any counter-affidavit. Of respondents 2 to 10 who have filed counter-affidavits, respondent 8 alone contended that the petition is highly belated, but he has not stated in his affidavit that petitioner had knowledge of the impugned orders dated 30 September, 1959 and 11 April, 1960 when they were made. The reason for the delay, in our opinion, has been satisfactorily explained and therefore we overruled the preliminary objection.

8. The transfer to, and absorption in, the Mysore Government Secretariat Service, of respondents 2 to 10 and giving seniority and promotion to them over the petitioner, by the orders dated 30 September, 1959, 11 April, 1960 and 10 November, 1964 referred to above, were challenged on the following grounds as formulated by his learned counsel :

(I) The impugned order dated 30 September, 1959 absorbing respondents 2 and 10 in the Mysore Government Secretariat Service contravened the Mysore Secretariat Services (Recruitment) Rules, 1957, and rule 16 of the Mysore State Civil Services (General Recruitment) Rules, 1957.

(II) The order dated 11 April, 1960 determining the seniority of respondents 2 to 10 vis-a-vis the assistants, shown in the provisional inter-State seniority list, is illegal, because rule 6 of the Mysore Government Servants' (Seniority) Rules, 1956; on the basis of which the said order has been made, does not govern their case.

(III) The ranking of respondents 2 to 10 in the inter-State seniority list of first division clerks assistants) in the Mysore Government Secretariat as shown in the Government Order No. GAD 38 ASA 60, dated 11 April, 1960, is ultra vires of the powers of the State Government and the order dated 10 November, 1964 promoting respondent 2 on the basis of his seniority in the inter-State seniority list is illegal.

The first ground as elaborated in Para. 9 of the petitioner's affidavit reads :

'. . . that under the Mysore Government Secretariat Services (Recruitment) Rules of 1957, the post of assistants can be filled either by direct recruitment or by promotion of junior assistants. None of these respondents are appointed to these posts by direct recruitment nor were they junior assistants so that they could be promoted as assistants. Therefore, these respondents could not have been appointed as assistants at all. Further, if in any case the Government proposes to relax the rules regarding appointment, under rule 16 it is clearly provided that the Government may, for reasons to be recorded in writing, transfer the officials. It is submitted that there has been no order passed recording the reason in writing exempting the application of the rules. Further even in such a case, the transfer can only be of an officer holding a post of an equivalent grade. As the post of the first division clerk and of the senior assistants are of different grades, having different duties etc., the transfer and appointment is invalid.'

9. The Mysore Government Secretariat Services (Recruitment) Rules, 1957, made by the Governor in exercise of the power conferred by the proviso to Art. 309 of the Constitution of India, regulate the method of recruitment to the Secretariat Services. Under the said rules, the method of recruitment for the posts of assistants is 50 per cent. by direct recruitment and 50 per cent. by 50 per cent. by promotion from the cadre of junior assistants. The next promotional post above assistants is that of senior assistants, and the basis of promotion to the said post is seniority-cum-merit. Transfer is not one of the methods of recruitment for the posts of assistants; but rule 16 of the Mysore State Civil Services (General Recruitment) Rules, 1957, confers on the Government the power to relax the rules of recruitment in respect of any service or post, and make appointment to a post by transfer from any other service of the State, of an officer holding a post of an equivalent grade. The relevant portion of the said rule reads :

'Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post, the Government may for reasons to be recorded in writing,

(a) appoint to a post

(i) * * * (ii) an officer holding a post of an equivalent grade, by transfer, from any other service of the State.'

10. In exercise of the power vested under rule 16(a)(ii), the Government, by the impugned order dated 30 September, 1959, transferred respondents 2 to 10 from the office of the Kannada Translator to Government and appointed them to the posts of assistants - which is the designation for first division clerks - in the Mysore Government Secretariat Service. The said order has been challenged not on the ground that the Government lacked power to order transfer, but on the grounds that the order does not disclose reasons for absorption in the Secretariat Service, and the posts of first division clerks in the office of the Kannada Translator to Government, were not of an equivalent grade. In Para. 9 of the petitioner's affidavit though he has stated that the posts of first division clerks and the senior assistants are of different grades having different duties, and therefore, the transfer and appointment is invalid, what was intended was that the posts of first divisional clerks and the assistants are of different grades and the reference to senior assistants is an apparent mistake. Respondents 2 to 10 were not appointed by transfer to the posts of senior assistants, but only to posts of assistants.

11. The post of assistants in the Secretariat Service was originally as first division clerks in the provisional inter-State seniority list published by the Government on 18 November, 1957. The list is called 'the provisional inter-State seniority list of first division clerks of Mysore Government Secretariat.' The designation of first division clerks was subsequently changed as assistants. The scale of pay for the cadre of first division clerks in the Secretariat and allied offices as sanctioned for the re-organized Mysore State, under G.O. No. F1(B)14034 - 14133 - Bud. 119-56-3 dated 25 January, 1957, Rs. 80-5-100-8-140-10-200. The scale of pay for the cadre of first division clerks in the office of the Translator to Government is the same, as was verified by us from the service registers of respondents 2 to 10 and from G.O. No. GAD 13 TAR 57.

12. The impugned order, after referring to G.O. GAD 13 TAR 57, states that consequent on the reorganization of the office of the Kannada Translator to Government there will be a surplus staff of one gazetted officer and 18 officials of class III and the officials mentioned in the order are transferred to the Mysore Government Secretariat against the existing vacancies and they will be absorbed there with effect from 1 October, 1959. G.O. No. GAD 13 TAR 57 dated 24 August, 1959 sanctioned the reorganization of the office Kannada Translator to Government. Paragraph 7 of the said order states that the staff then working in the office was in excess of the requirements fixed by the said order and the Chief Translator to Government should make proposals immediately about the staff which will have to be absorbed in other departments or retrenched, if any persons are holding appointments only on temporary or acting tenure (Vide pp. 89-92 of Important Orders of Government issued during the year 1959.) On a perusal of the above referred orders, it is clear that the reasons for transfer of respondents 2 to 10 to the Mysore Government Secretariat Service and absorption therein are recorded in writing.

13. Sri Datar, the learned counsel for the petitioner, argued that the recorded reasons only show why the officials were transferred of the Kannada Translator to Government but not the reason for absorption in the Secretariat Service. There is no substance, in our opinion, in this contention. Consequent on the reorganization of the office of the Kannada Translator to Government, some of the first division clerks working in that office were found in excess of the requirements fixed by the Government order; such excess staff had to be absorbed in other departments by transfer and there were vacancies existing in the Mysore Government Secretariat Service and consequently respondents 2 to 10 were transferred to and absorbed in the Mysore Government Secretariat Service. It is not the case of the petitioner that the Government had no power to appoint by transfer respondents 2 to 10 in the Secretariat Service. The exercise of the power under rule 16 by the Government is of an administrative character. When the Government is doing an administrative act, the fact that it has to form an opinion that the posts are of equivalent grade, does not make it any the less administrative in character; the Court cannot scrutinize the order to determine whether the two posts are of an equivalent grade and whether the reasons recorded for the transfer are sufficient to justify the order, as if it was a judicial or quasi-judicial determination.

14. The second ground relates to the challenge of the Order No. GAD 38 ASA 68 dated 11 April, 1960, which we have set out above. This ground as elaborated in Paras. 8 and 10 of the petitioner's affidavit reads :

'8 . . . that the Government is clearly incompetent to apply rule 6 of the Mysore Government Seniority Rules and give seniority to the officials on the said basis. In the Mysore Government Servants' (Seniority) Rules, 1957, rule for 9 provides that these rules are not to apply for determination of initial seniority in the State of persons who are allotted under S. 115. Therefore, it is clearly erroneous to have applied rule 6 of the Mysore Government Seniority Rules and granted seniority to these officials in the inter-state seniority list on this basis.

That the petitioner further submits that, in any event, rule 6 of the Mysore Government Servants' (Seniority) Rules is inapplicable, as there is no transfer of a person in 'public interest' achieved by the transfer of these officials and that is not even alleged. Therefore, it is submitted that rule 6 has been wrongly applied. It may further be noted that even after the order of absorption, some of them were sent back to the Translator's office. This shows that there is no public interest served.'

Rules 6 and 9 of the Mysore Government Servants' (Seniority) Rules, 1957, read :

'6. The transfer of a person in public interest from one class or grade of a service to another class or grade carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred shall be determined with reference to his first appointment to the class or grade from which he was transferred :

Provided that where the transfer is made at the request of the officer, he shall be placed in the seniority list of the class or grade of service to which he is transferred below all the officers borne on that class or grade go service on or before the date of the transfer.

15. These rules shall not apply to the determination of initial seniority in the State of person who are allotted or are deemed to have been allotted to serve in connexion with the affairs of the State of Mysore in pursuance Act, 1956. The seniority of such person shall be as determined in accordance with the provisions of the said section and the orders issued in pursuance.'

16. The first part of rule 6 states that where an official is transferred in public interest from one class or grade of service to another class or grade carrying the same pay or scale of pay, his appointment by transfer shall not be treated as first appointment for the purpose of the seniority; the second part states that seniority of such an official shall be determined with reference to first appointment to the class or grade from which he was transferred. An official at his own request, however, has to be placed in the seniority list of the class or grade of service to which he was transferred, below all the officers borne on that class or grade of service on or before the date of transfer. In other words, under rule 6, where a transfer is made at the request of an official, he ranks below all officers borne on that class or grade of service or before the date of transfer, but when transfer is made in public interest, his transfer shall be treated as first appointment in the new department and his seniority has to be determined with reference to his first appointment to the class or grade from which he was transferred.

17. Rule 6 has been for determination of seniority of officials transferred from one class or grade to another class or grade either in the public interest or at the request of the concerned officials. The rule governs determination of seniority of officials transferred by the reorganized State of Mysore, after it came into existence on 1 November, 1956. Rule 9 has been made to leave no doubt as to the legal position that the Mysore Government Servants' (Seniority) Rules, 1957, shall not apply to the determination of initial seniority in the State, of officials allotted or deemed to have been allotted to the State under S. 115 of the Act. The determination of initial seniority in the State, of officials allotted to service in the new State, is part of the process of integration of service which is within the exclusive jurisdiction of the Central Government under Sub-section (5) of S. 115 of the Act. When officials of the reorganized State are transferred after 1 November, 1956 from one department to another in the State, the transfer is not made by the Central Government but by the reorganized State Government and such transferred officials are not officials affected by the provisions of S. 115 of the Act. Their initial seniority, i.e., seniority at the commencement of service in the reorganized State as on 1 November, 1956, alone forms part of the process of integration of the services under S. 115(5) of the Act. Seniority determination in the new department to which officials are transferred is within the exclusive of the State and that has to be determined under rule 6. Therefore, rule 9 dose not exclude the application of rule 6 by respondent 1 to the case of respondents 2 to 10 on their transfer to the Mysore Government Secretariat Services.

18. The next argument of Sri Datar was that since the order of transfer, dated 30 September, 1959, dose not state that the transfer was ordered in public interest, rule 6 is not applicable to the case of respondents 2 to 10. The order of transfer was made in the exercise of the powers conferred by rule 16 of the Mysore State Civil Services (General Recruitment) Rules, 1957. That rules does not state that the order ought to mention that the transfer is ordered in public interest. It is not petitioner's case that respondents 2 to 10 were transferred on their own request. Government orders sanctioning the reorganization of the office of the Kannada Translator to Government and the consequent appointments by transfer which we have set out above, show that there was excess staff who had to be provided by transfer and absorption in other departments in existing vacancies. Therefore, respondents 2 to 10 are officials transferred from one department to another in public interest and they do not fall within the category of officials transferred on their own request. Sri Datar next argued that in order to apply rule 6, it has to be shown that the posts of first division clerks in the office of the Kannada Translator to Government and the posts of assistants in the Secretariat Service carry the same pay or scale of pay; that respondent 8, an allottee from the erstwhile Hyderabad State on the date of his transfer, was on the pay-scale of Rs. 135 - 200, which is not the pay-scale of assistants in the Secretariat Service. In the petitioner's affidavit, there is no allegation that posts of assistants in the Secretariat Service and posts of first division clerks in the Kannada Translator to Government, were not carrying the same pay or scale of pay on the date of transfer. The scale of pay of first division clerks (assistants) in the Secretariat Service for the reorganized Mysore State as per Government order dated 25 January, 1967, was Rs. 80 - 5 - 100 - 8 - 140 - 10 - 200. It was left to the option of the allottee officials either to opt for the scale of pay of the new State of Mysore or to the pay-scale of their parent States; that is a protection afforded to the officials affected by S. 115 of the Act, and the pay-scale of the allottee official not opting for the scale of the new State, is in the nature of his personal pay-scale. The scale of pay sanctioned for the first division clerks in the office of the Kannada Translator to the Government and first division clerks (assistants) in the Mysore Secretariat Service, is identical as already stated and therefore there is no substance in the contention of the learned counsel for the petitioner.

19. The last ground urged on behalf of the petitioner was, that by the impugned order dated 11 April, 1960, the names of respondents 2 to 10 were included in the provisional inter-State seniority list of assistants as on 1 November, 1956, which the State Government has no power to include. The said ground has been elaborated in Para. 7 of the petitioner's affidavit thus :

'. . . that it is incompetent for the State Government to order inclusion of these respondents 2 to 10 in the provisional inter-State seniority list of assistants as on 1 November, 1956. It is submitted that the provisional inter-State seniority list of assistants as on 1 November, 1956 can consist only of those officials who are working in the post equated with these posts of assistants. Other officials who are working in other departments and are transferred to the Secretariat subsequently, cannot at all be included in the provisional inter-State seniority list . . .' It is common ground that the names of respondents 2 to 10 have not shown in the three provisional inter-State seniority list of first division clerks (assistants) of the Mysore Government Secretariat, published on 18 November, 1957, 11 May and 20 September, 1962. During the pendency of the writ petition, the State Government, on 12 March, 1965, is stated to have published a list incorporating the decision of the Central Government and that in the said list also, the names of respondents 2 to 10 are not included. Therefore, factually it is not correct to state that the names of respondents 2 to 10 have been included either in the provisional inter-State seniority list or in the list published in accordance with the decision of the Central Government. Neither the petitioner nor the respondents have contended before us that names of officials transferred from one department to another department by the new State have to be included in the inter-State seniority list of the transferee department. Inapt wording of the impugned Government order dated 11 April, 1960 while determining seniority of respondents 2 to 10 under rule 6 of the seniority rules consequent on their appointment by transfer in the Mysore Government Secretariat, has given scope to the contention of the petitioner that respondents 2 to 10 have been included in the inter-State seniority list of first division clerks of the Mysore Government Secretariat. After referring to the transfer of the officials, the order stated that 'the seniority of these first clerks has to be fixed in the inter-State seniority list of the assistants of the Mysore Government Secretariat, 'and that' in accordance with rule 6 of the seniority rules issued in Notification No. GAD (O&M;) 15 GRR 57, dated 7 February, 1958 and on the basis of their date of their promotion to the grade equated to first division the ranking of these officials in the inter-State seniority list of first division clerks (assistants) of the Mysore Government Secretariat will be as noted below : Sr Names of Date of entry Date of promotion to First division No. assistants into service the grade equated to serial number tobe assigned inthe inter-Stateseniority list offirst divisionclerks of theMysore GovernmentSecretariat Below Sl. No. * * * * 1 S. Ramachandrachar 20 March, 1950 20 March, 1950 240 as 240(a) 2 V. S. Joshi ... 14 October, 1947 14 October, 1947 165 as 165(a) 3 N. R. Balehosur ... 19 February, 1951 19 February, 1951 255 as 255(a) 4 H. Venkateshayya ... 28 August, 1952 28 August, 1952 269 as 269(a) 5 B. S. Subbaraya 21 November, 1953 21 November, 1953 281 as 281(a)Sastri 8 January, 1954 6 B. Ramu ... 10 February, 1954 10 February, 1954 284 as 284(a) 7 H. M. R. Gowda ... 15 February, 1954 15 February, 1954 284(a) as 284(a) 8 Hanumanthachari ... 2 March, 1954 2 March, 1954 284(b) as 284(c) 9 K. Keshava Rao ... 7 August, 1954 7 August, 1954 291 as 291(a) * * * *

. Annexure to the impugned of promotion dated 10 November, 1964 of respondent 2 refers to his ranking in the inter-State seniority list.

20. The respondents did not contend that the names of respondents 2 to 10 could be included in the inter-State seniority list. Respondent 1, the State, has not filed any counter-affidavit; but respondents 2 to 10 have filed counter-affidavits wherein they have explained the impugned order of the Government dated 11 April, 1960 by stating that the State Government adopted the provisional inter-State seniority list as the State gradation list for purposes of seniority of assistants (first division clerks) pending finalization of the said list by the Central Government, and that in exercise of the powers conferred by rule 6 of the seniority rules, the State Government determined the seniority of the transferred officials with reference to their first appointments to the grade from which they were transferred. The petitioner joined service as assistant in the Bombay Government Secretariat on 17 October, 1955. Respondents 2 to 10, it is not disputed, were either appointed or promoted to the grade of first division clerks in the Department of Translation on the dates mentioned under col. 4 of the impugned Government order, and if their seniority is appointment or promotion to the grade of first division clerks in the translation Department, all of them have to be ranked above the petitioner as has been done by State Government.

21. Though the Government order dated 11 April, 1960 states that the ranking of respondents 2 to 10 has been fixed in the inter-State seniority list at the serial numbers given in the said order, that order has to be construed merely as an order determining the seniority of said respondents vis-a-vis the first division clerks (assistants) borne on that grade of service on the date of transfer. That was also the intention of the State Government and how they construed that order is clear from the fact that in the revised provisional inter-State seniority lists published on 11 March and 29 September, 1962 and the list published on 12 March, 1965 incorporating the decision of the Central Government, the names of respondents 2 to 10 have not been included. What was intended by the impugned order was merely to determine the seniority of respondents 2 to 10, who were transferred to the Mysore Government Secretariat as assistants (first division clerks), under rule 6 of the seniority rules, and that the serial numbers in the provisional inter-State seniority list of the officials borne on that class was noted only for the purpose of convenience and the ranking in the provisional inter-State seniority list was adopted as the State gradation list.

22. It was urged by Sri Datar, the learned counsel for the petitioner, that the seniority of the respondents who were transferred from other departments could be determined only after the inter-State seniority list of first division clerks or assistants is finalized by the Central Government under S. 115(5) of the Act. His argument was, that since the position of the petitioner and other assistants has not been finally fixed by the Central Government as on 1 November, 1956, the seniority of the respondents brought by transfer on a date subsequent to 1 November, 1956 cannot be determined under rule 6. In support of the said argument, the learned counsel sought support from certain observations made by Tukol, J., in writ petition No. 736 of 1964. The relevant passage in the judgment reads :

'As regards respondents 3, 4 and 6 it is common ground that they were working in the Police Department on 1 November, 1956. They were, however, brought to the Fingerprint Bureau in 1958. In that view, it would not be correct to include them in the inter-State seniority list among the officials of the Fingerprint Bureau, because they were not in that Bureau on the date of the States reorganization. What is however contended on behalf of these respondents is that, in the old State of Mysore the sub-inspectors were interchangeable between the regular Police Department on the executive side and the Fingerprint Bureau branch on the technical side. If that were so, it would follow that these officials who were borne on the regular list of sub-inspectors of police, would have their inter se seniority determined as on 1 November, 1956 in the regular cadre of the executive branch of the Police Department. Nothing prevents the State Government from having or establishing such inter-changeable posts but if officers who were not in the particular branch on 1 November, 1956 are brought on a subsequent date to such department, their positions will have to be determined only after the seniority of the persons working in the departments on 1 November, 1956 is first determined by the preparation of the final inter-State seniority List and these officials are given their due promotions as on the which outsiders are brought into that department. After determining the position of the officials in the department on such date in such final list the seniority of the officials brought from the outside will have to be determine. (Italics is ours.)

23. The only question for decision in the said case was, whether officers not in a particular branch on 1 November, 1956, but who were brought by transfer on a subsequent date to such department can be included in the inter-State seniority list. The said decision does not lay down that until the Central Government finalizes the inter-State seniority lists the State is deprived of its power to transfer an official from one department of the Government to another department and determine his seniority under rule 6 or the Seniority Rules in relation to officials already borne on that class or grade of service on the date of transfer. The question of determination of seniority of a transferred official under rule 6 did not arise for consideration in the said case.

24. Preparation of inter-State seniority lists by the Central Government constitutes part of the function of division and integration of services vested in the Central Government by virtue of S. 115(5) of the Act. It is no part of the function of integration of services under S. 115(5) to determine the seniority of an official transferred from one class or grade of service made by the re-organized State Government after 1 November, 1956. Officials belonging to various services, bearing different designations and having different terms and conditions of service, by virtue of their allotment to the service of the reorganized States under the States. Reorganization Act, are deemed to have been appointed to the service of the new State, as on 1 November, 1956; by virtue of sub-section (1) of S. 116 of the Act. Sub-section (5) of S. 115 vests in the Central Government the power of integration of the services affected by the provisions of the services affected by the provisions of the said section.

25. The process of integration commences with the allotment of official personnel affected by the provisions of S. 115 to a re-organized State, and would cover the determination of equivalence of posts, absorption of officials in the equivalent posts, and the determination of their inter se seniority. The completion of the work of integration, having regard to the complexity and hugeness of the problem, may take several years; but notwithstanding the time taken by the Central Government and the date of its decision, the integration is done with reference to the date on which the officials are deemed to have appointment to the services of the reorganized State. In other words, the decision regarding integration, relates back to the 'appointed day' under the Act. The exclusive power of the State vested by the Constitution under entry 41 of list II of Sch. VII on the subject of 'State Public Services' has been curtailed only to the limited extent of the power of integration conferred by the Parliament under S. 115(5) on the Central Government. The power of appointment of an official by transfer from one department to another and absorption therein, is not any part of the process of integration; all other powers of State with respect to its public services, including appointment by transfer from one department of the State to another, remain unaffected by the Act. The transfer of respondents 2 to 10 from the office of the Kannada Translator to the Government to the Mysore Government Secretariat was made in exercise of the re-organized State which has not been affected by the Act and the exercise of that power naturally is not dependent on the completion of the work of integration by the Central Government. The integration of first division clerks (assistants) in the Secretariat Service affected by the provisions of S. 115 of the Act, is made by the Central Government and in that process, the inter se seniority of the integrated personnel as on 1 November, 1958 requires to be determined. The seniority of respondents 2 to 10 vis-a-vis assistants already borne on the cadre of first division clerks (assistants) on the date of appointment by transfer has been determined in accordance with the provisions of rule 6 and for the purpose of determination of their relative seniority, the gradation of the assistants in the provisional inter-State seniority list, was adopted for the purpose of convenience. If in the final inter-State seniority list prepared and published in accordance with the decision of the Central Government, any alteration is made in the ranking of the petitioner and others, who were borne on that cadre on the date of transfer of respondents 2 to 10. the State Government has to readjust the seniority of respondents 2 to 10 in the State gradation list by application of rule 6 of the seniority rules.

26. If the order of appointment by transfer of respondents 2 to 10 and the determination of their seniority under rule 6 is not open to challenge on any of the grounds urged by the petitioner, as held by us, the challenge to the order of promotion of respondents 2 to 10 has also to fail since it is not disputed that respondents 2 to 10 had completed five years of service when their promotions were ordered and they are seniors to the petitioner.

27. In the result, all the contentions urged by the learned counsel or the petitioner fail and consequently, the writ petition fails and is dismissed with costs - one set. Advocate's fee Rs. 100.


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