Skip to content


Shankar Ganesh Joshi and ors. Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Pet. No. 1138 of 1960
Judge
Reported inAIR1962Kant112; AIR1962Mys112
ActsStates Reorganization Act, 1956 - Sections 115(5) and 117; Constitution of India - Article 226
AppellantShankar Ganesh Joshi and ors.
RespondentState of Mysore and anr.
Appellant AdvocateG.K. Govinda Bhat, Adv.
Respondent AdvocateD.M. Chandrashekar, High Court Government Pleader for ;Adv. General
Excerpt:
.....complain against their allocation to the new state of mysore, their complaint is one which the state government is not bound to forward to the advisory committee. venkataranga iyengar and ullal complain they have been disobeyed in their own cases, what the petitioner in those cases should do would be to make representations against the provisional list prepared by the state government, and not that approach this court for an order that the provisional list should be quashed on the ground that it does not conform to the directions or instructions issued by the central government. in one part of their representations, the petitioners complained against their allocations the new state of mysore, and in the other part, they challenged the equation of the posts made in the impugned..........prepared by the state government, even if that list prepared by the state government, even if that list makes departures form and is not in accordance with the instructions issued by the central government to it under section 117 of the states reorganization act.(15) but, the more serious complaint which is made by mr. govinda bhat, appearing on behalf of the petitioners in this writ petition is that the representations made by the petitioners against the provisional inter- state seniority list prepared in this case, bringing about an integration the non-gazatted cadres of the secretariat of the then state of bombay and the first division clerks of the new state of mysore, have not been forwarded to the state advisory committee constituted by the central government, although the state.....
Judgment:

Somnath Iyer, J.

1. The eleven petitioners before us were Senior Assistants, in the Secretariat of the State of Bombay. Under the provisional of the States Reorganization Act, they were allotted to serve in the new State of Mysore. The provisional allotment was made at the time of the Leo reorganization, and we have been told that the final allotment under sub-section (3)of section 115 of the States Reorganization Act was made in the year 1960.

(2) On November 18, 1957, the Government of the new State of Mysore published what is described as a provisional Inter-State Seniority List of the First Division Clerks in the Mysore Government Secretariat. Persons who were dissatisfied with their positions in the said list. 'on grounds connected with the establishment of equivalence reorganization' were directed that submit their objections to the Under - Secretary to the Government, General Administration Department, with in thirty days from the date of the publication of the List.

(3) The petitioners before us State that they submitted their objections in that way, and that their complaint was that only they should not have been allocated to the new State of Mysore but should have been retained in the service of the State of Bombay but that there was no justification for treating, as a the provisional Inter-State Seniority Assistant in the State of Bombay and the post of a First Division Clerk in the new State of Mysore as equivalent posts.

(4) On behalf of the petitioners, it has been urged before us that the objections preferred by the petitioners have not been disposed of & that , in the meanwhile, on the basis of the provisional List, promotions have been made, with the result that persons who were Junior Assistants in the State of Bombay before reorganization and , therefore, who were far junior to the petitioners have not only been placed in the provisional List above posts which would have been within the reach of the petitioners if there had been a proper equation of Bombay and had not been allotted to serve in the new State of Mysore.

(5) It is stated on behalf of the petitioners that the State Government has declined to forward to the concerned advisory committee constituted by the Central Government their representations against their allocation, made by the Central Government, under the provisional of sub-sections (2) and (3) of section 115 of the States Reorganization Act, and against the arguments of their seniority.

(6) In this application, the petitioners ask for a writ of mandamus, directing the State Government to refer the petitioners representations to the State Advisory Committee, constituted by the Central Government, and also for a further direction restraining the State Government from making promotions on the basis of the provisional Inter-State seniority List.

(7) On behalf of the State, it has been explained in the affidavit produced by it that the provisional Inter-State seniority List is not one prepared by the State Government but was only what was prepared by a departmental committee. It is further explained that the State Government has yet to make its own provisional Inter-State Seniority List and that when that List is made, it would be open to the petitioners to submit their representations against it. The stage when the petitioners' representations may be forwarded to the advisory committee, according to the State Government, has not yet there fore been reached.

(8) The application for a writ of mandamus for which the petitioners have prayed in this case is, therefore, resisted on the ground that it is premature.

(9) On behalf of the State Government, the learned Advocate General and Mr. Chandrashekar, the learned Government Pleader, have urged that even at the stage when the representations of the petitioners have to be sent to the concerned advisory committee, only those representations which relate to integration of the services or to the equation of posts of the petitioners with some other posts are what are required to be forwarded that the advisory committee and that if the petitioner complain against their allocation to the new State of Mysore, their complaint is one which the State Government is not bound to forward to the advisory committee.

(10) Mr. Govinda Bhat, appearing on behalf of the petitioners, has not asked us to quash the provisional inter-state seniority List which the state Government published on November 18, 1957, and, in our opinion, he is right in desisting from asking for any such relief.

(11) If the petitioners had asked us to quash that provisional into-state seniority List, it is clear that we would have declined to do so. We have pointed out in M.A. Juleel v. State of Mysore, Writ Petition No. 511 of 1960 :(AIR 1961 Mys 210) that the Central Government is the repository of the power to make the final integration envisaged by S. 115(5) for the States Reorganization Act but, we have also pointed out that the preparation of the provisional inter-state seniority List, such as the one prepared by a departmental committee in the present case, is one of with in the competence of the State Government, incorporating it does not acts amounting to the preparation for the final disposition of the matter by the Central Government. If the State Government makes a provisional inter-state seniority List in that way and the Central Government is the grantee of the power to make the final integration, and if, as required by S. 115(5) of the Act, the Central Government before making the final integration has to consider the representations made by the civil servants affected by the provisions of S. 115 of the Act, it is clear that it would not be open to the petitioners to ask this Court to quash the provisional inter-state seniority List prepared by the State Government when that List constitutes no more than mere material on which the Central Government may make its final determination.

(12) We are not impressed by the argument addressed by Mr. Venkataranga Iyengar, whom we permitted to intervene during the argument in this case, or that addressed by Mr. Ullal, who was permitted similar intervention, that if the provisional inter-state seniority List prepared by the State Govt. Or one of its departmental committees does not conform to the decisions issued by the Central Government from time to time under S. 117 of the States Reorganization Act, that List is liable to be quashed by this Court on that ground.

(13) It is true, that for the purpose of effectuating these integration which the Central Government has the power to make under S. 115(5) of the States Reorganization Act, the Central Government is competent, under the provisions of S. 117 of that Act, to issue directions to the State Government, obedience to which is made obligatory. But , if the directions so issued by the Central Government are disobeyed, as Messrs. Venkataranga Iyengar and Ullal complain they have been disobeyed in their own cases, what the petitioner in those cases should do would be to make representations against the provisional list prepared by the State Government, and not that approach this Court for an order that the provisional list should be quashed on the ground that it does not conform to the directions or instructions issued by the Central Government.

(14) In our opinion, it would not be proper for this Court to exercise its jurisdiction under Article 226 of the Constitution to quash a. Provisional Inter- State seniority List prepared by the State Government, even if that List prepared by the State Government, even if that List makes departures form and is not in accordance with the instructions issued by the Central Government to it under Section 117 of the States Reorganization Act.

(15) But, the more serious complaint which is made by Mr. Govinda Bhat, appearing on behalf of the petitioners in this Writ Petition is that the representations made by the petitioners against the provisional Inter- State seniority List prepared in this case, bringing about an integration the non-Gazatted cadres of the Secretariat of the then State of Bombay and the First Division Clerks of the new State of Mysore, have not been forwarded to the State Advisory Committee constituted by the Central Government, although the State Government was bound to so forward them.

(16) The representation made by the petitioners, as we already pointed out, consisted of two parts. In one part of their representations, the petitioners complained against their allocations the new State of Mysore, and in the other part, they challenged the equation of the posts made in the impugned provisional List.

(17) It is admitted that the State Government has not placed these representations of the petitioners before the State Advisory Committee, which admittedly was constituted by the Central Government to as it in regard to the integration of services. The reason why, according to the State Government, the representation of the petitioners were not forwarded to the State Advisory Committee was that the stage for so forwarding them to the Advisory Committee had not yet been reached. In paragraph 9 of the affidavit, produced on behalf of the State, it is stated as follows: --

(18) If, as explained on behalf of the State, the provisional inter-state seniority List, made on November 18, 1957, is only a mere prelude to the preparation of the provisional inter-state seniority List by the State Government itself, there does not appear to our minds to be anything unreasonable or unnatural in the State Government not forwarding the representations which have now been preferred by the petitioners to the State Advisory Committee.

(19) It is manifest, however, that the State Government will prepare its own provisional inter-state Seniority List, after considering the objections which have now been preferred by the petitioners to the List now prepared by its departmental committee. It is also equally plain that the petitioners would be entitled after the publication of that provisional List, which the State Government proposes now to make, to make their representations which the Central Government is required to consider under the provisions of Section 115(5) of the States Reorganization Act. That the State Government is prepared to forward those relation to the State Advisory Committee constituted by the Central Government is what the learned Advocate General has told us, although his argument was that the only representation which the State Government would forwarded to the State Advisory Committee would be that which relates to the integration of the services and not that which relates to the allocation of the petitioners for the service in the new State of Mysore.

(20) That being the position, it is in our opinion unnecessary for us to issue writ of mandamus at this stage, directing the State Government to forward the representations of the petitioners to the State Advisory Committee, constituted by the Central Government.

(21) But the question which has to be next considered is whether the learned Advocate General is right in Contending that the petitioners have no right to make a representation against their allocation to the new State of Mysore. According to the learned Advocate General, the only representation which a civil servant may make under the provisions of Section 115(5) of the States Reorganization Act is one which relates to the integration of the services. According to him the fair and equitable treatment ensured by S. 115(5) of the Act is one which relates to the integration of the services and that the Central Government was not bound, and according to him, was not even competent, after the final allotment was made under S. 115(3), to listen to any complaint that a civil servant had been unjustly allocated for service to a particular State.

(22) We cannot accede to this contention. Section 115(5)(b) entitles a civil servant affected by the provisions of S. 115 to make representations to the Central Government has the power to finally allocate a civil servant for service to a particular State. The argument addressed by the learned Advocate General was that once a final allotment was made under the provisions of that sub-section, it was no longer open to a civil servant to complain against such allotment.

(23) The fact that subsection (3) of S. 115 refers to a final allotment by the Central Government does not to our minds preclude a civil servant from making a representation against it. It is not disputed that no civil servant who was so finally allotted under S. 115(5)(3) was either heard or afforded an opportunity to make representation against such final allotment. However that may be, S. 115(5)(b) refers to a representation by a civil servant affected by the provisions of S. 115. That representation, it is clear, may be made under that sub-clause in respect of every order made under S. 115, including one made under S. 115(3), making a final allotment of a civil servant that a particular State. If a final allotment is made under S. 115(3) and a civil servant considers himself aggrieved by such final allotment, he is a person 'affected by the provisions of this section', within the meaning of that expression occurring in S. 115(5)(b) of the States Reorganization Act.

(24) In our opinion, it is clear that a civil servant affected by any thing done to him under any part of S. 115 may make a representation with respect to it. So, he is not only entitled to make a representation with the reference to the integration of his service, but also against his allocation to a particular State, under S. 115(3) of the States Reorganization Act, if he affected by it.

(25) The learned Advocate General drew our attention to a communication addressed by the Government of India on December 22, 1958, to the Secretary to the Union Public Service Commission on the question as to whether a civil servant may, after his allotment to a particular State, complain against his allocation to that State. Support for the argument that a civil servant cannot make any such representation was sought that be derived from this communication.

(26) We have perused this letter and we find that the letter does not materially assist the argument addressed before us by the learned Advocate General.

(27) All that emerges from this letter is that the Government of India was of the view that it was not desirable to re-open the issues of allocation but that that matter was one to be decided by the Central Advisory Committee.

(28) Even otherwise, it seems to us that the right of a civil servant that make a representation against his allocation must depend entirely on the language of section 115(5)(b), and not on the interpretation which might have been placed by the integrating authorities.

(29) In the view that we have taken, if the petitioners should make a representation against their allocation to the new State of Mysore, after the State Government prepares its own provisional inter-state seniority List, that representation, in our opinion, cannot be with held by the state Government and has that be forwarded by it to the Central Government.

(30) We have been told by the learned Advocate General that it would be improper and objectionable for a civil servant of the new State of Mysore to send any representation directly to Central Government and, in our opinion, the learned Advocate General is right in making that submission.

(32) But the interdict against the submission of a representation directly to the Central Government and the requirement that he should submit that representation to the Central Government only through the State of which he is civil servant, necessary implication creates an obligation on the part of state Government the representation which its civil servant has a right that make to the Central Government. If a civil servant who has as right to make such a representation on requests the State Government of which he is a civil servant, to forward it to the Central Government, it is plain that the State Government cannot decline to forward it to the Central Government. If it does, it would be a plain case for the issue of a mandamus.

(33) However that may be, since the State Government has not yet made its own provisional inter-state seniority List, and since it would be open to the petitioners in this case to submit their representation, after such List, is prepared by the State Government, in which they may also include a complaint against their allocation to the new State of Mysore, and in the view that we take that representation if made by the petitioners cannot be withheld by the State Government and has to be forwarded to the Central Government, the stage at which any mandamus can issued to the State Government directing it to forward such representation having not yet arisen, it would not be right for us to issue any mandamus to the State Government at this stage.

(34) Mr. Govinda Bhat, however, contended that we should hold that in this case the petitioner were reduced in rank in contravention of the provisions of Art. 311(2) of the Constitution. He has pointed out to us that in the provisional List prepared by the departmental committee, person who was a junior assistant in the Secretariat of the Government of Bombay has been placed far above the petitioners. Mr. Govinda Bhat by way of illustration pointed out that the first petitioner who was a Senior Assistant in the State of Bombay has been assigned the hundred and eighty-fourth place in the List whereas one Garage who was a Junior Assistant and therefore junior to the first petitioner in that State has been assigned the thirteenth place in that List. Mr. Govinda Bhat therefore asks us to deduce on that material that there was in this case an obvious reduction in the rank of the first petitioner. He has pointed out that the same thing has happened to all the remaining ten petitioners.

(35) But the learned Government Pleader has explained to us that the assignment of ranks to the petitioners rested on the objections made by the Departmental committee which prepared the provisional List, of the distinction between the junior assistants and senior assistants of the State of Bombay all of whom were treated by that committee as holding a post equivalent to that of a First Division Clerk in the new State of Mysore. He has also submitted to us that the provisional list prepared by the departmental committee does not disturb the inter-se seniority between the employees of the Secretariat of then State of Bombay.

(36) Now, as pointed out by us in Writ Petition No. 511 of 1960: (AIR 1961 Mys 210), before we can come to the conclusion whether or not any of these petitioners were reduced in rank, with him the meaning of that expression occurring in the Article 311(2) of the Constitution, we would have to hold that the equation of the posts made by the departmental committee was illegitimate. It does not appear to us that we should embork on any such investigation in this case. These provisional list now prepared is one prepared by a departmental committee, the correctness of which is subject not only to the scrutiny of the State Government, but to the more important ultimate scrutiny of the Central Government. The investigation which the Mr. Govinda Bhat asks us to do in this case is the very investigation which the Central Government has to make. It is obvious that it would not be right for us to express any opinion on a matter which is entirely within the competence of the Central Government.

(37) In regard to the prayer made by the petitioners that we should direct the State Government to abstain from making promotions on the basis of the provisional list made by its departmental committee, all that is necessary to State is, that, as pointed out by us in Writ Petition No. 511 of 1960:(AIR 1961 Mys 210), Interim classifications and equations of posts, promotions, postings and the like are all the matters falling with in the scope of the State Government to consolidate its Government operations, through a transitional reorganisation of its administrative structure during the interregnum between the formation of the new State and the amalgamation of the integrant parks of its civil service by the Central Government. It is perfectly manifest that even through the State Government proposes to make promotions on the basis of the provisional list prepared by its departmental committee, it would not be right on our part to forbid such promotions, particularly since in paragraphs 9 and 10 of the affidavit produced on behalf of the State, it is stated as hereunder:

'The said promotions are purely provisional and subject to revision when the equation of posts and inter State seniority of these officials is finalised.

* * * * * *** * * * '10. The State Government can make promotions provisional subject to such promotions being revised after the inter-State seniority list is finalised.'

(38) When we asked Mr. Govinda Bhat whether he could suggest any alternative basis for making such promotions which in certain circumstances might be inevitable, he w unable to suggest any such substitute.

(39) In our opinion, the argument that no promotions at all should be made by the State Government until the final integration is made by the Central Government is too unreasonable to merit acceptance.

(40) In our opinion, there is no substance in the complaint that by the reason of such promotions which the State Government has competence to make, any service condition of any of the petitioner has been infringed, in violation of the proviso appearing under Section 115(7) of the States Reorganisation Act.

(41) Any temporary disadvantage or prejudice to which a civil servant may be exposed by reason of the exercise of the power by the State Government to make interim arrangements can always be redressed by the Central Government with retrospective effect when it makes the final integration. That, in our opinion, is an excellent ground for the refusal of the request made on behalf of the petitioners that we should issue an interdict stopping all promotions in the State until the final integration is accomplished.

(42) Some argument was expended over the validity of certain rules made by the State Government under the provisions of Article 309 of the Constitution. Those rules were made on February 16, 1961, and published on March 9, 1961. They are instituted 'he Mysore State Civil Servants Integration Rules, 1960.

(43) But, our judgment in Writ Petition No. 511 of 1960, which was rendered on March 13, 1961, makes the validity of at least some of those rules extremely doubtful and it is not necessary for us to say anything more than with reference to those rules in this case.

(44) In the view that we take, all that we need do in this case would be dismiss this Writ Petition and to express the hope that the integration of the services of the new State of Mysore, which has been pending for more than four years, after the States Reorganisation Act came into force, will soon be completed.

(45) No costs.

(46) Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //