(1) In this Writ Petition under Article 226 of the Constitution, though several reliefs were asked for, at the time of the hearing, Sri H.B. Datar, the petitioner's learned counsel pressed for only one relief, namely, that this Court may be pleased to quash the order of the State Government in No. FD 474 CSE 63, dated 6th December 1963 for the reason that it was made on the basis of an invalid order of the Central Government.
(2) The impugned notification reads thus:
GOVERNMENT OF MYSORE
No.FD.474 CSE 63.
Mysore Govt. Secretariat
9th Agrahayana, 1885
Whereas the posts of Assistant Commissioners of Commercial Taxes in the Commercial Tax Department have to be filled up by promotion of Commercial Tax Officers on the basis of Seniority-cum-merit;
Whereas in pursuance of the direction issued by the High Court in Writ Petition No. 1587 of 1962, Sri A.N. Naganoor has been promoted as Assistant Commissioner of Commercial Taxes on the basis of his rank in the Provincial Inter-State Seniority List:
Whereas the final Inter State Seniority List as determined by the Central Government has been notified under the proviso to Article 309 of the Constitution in Notification No. GAD G-IGS 63 published in the Mysore Gazette dated 26th September 1963 and the officers mentioned in the said list are entitled to be considered for promotion to the posts of Assistant Commissioner of Commercial Taxes in the order in which their names appear in the said lists:
Whereas in view of his ranking in the said final inter-State Seniority List of Sri A.N. Naganoor would not be eligible for promotion.
The Government of Mysore hereby directed that Sri A.N. Naganoor be reverted as Commercial Tax Officer with immediate effect.
The question of promotion of Sri A.N. Naganoor to the cadre of Asst. Commissioner of Commercial Taxes will be considered in due course in accordance with his rank in the final inter-State Seniority List.
By order and in the name of the Governor of Mysore,
Under Secretary to Government I/C Finance Department.'
(3) These are the relevant facts: The petitioner was appointed as a Sales Tax Inspector in the Sales Tax Department of the erstwhile State of Bombay on 24-4-1946. On 2-3-1953, he was promoted as a Sales Tax Officer, Grade III. On 1-11-1956, at the time of the Reorganisation of the States, he was allotted to the new State of Mysore. The provisional Inter-State Seniority List of the officers of the Commercial Tax Department in the new State of Mysore was made on 25th May 1957 and published in the Official Gazette on 6-6-1957. Under the list, the Sales tax Officers, Class II of the former Hyderabad State and the Sales Tax Officers, Grade III of the former Bombay State were equated with the Assistant Sales Tax officers of the former State of Mysore. The petitioner and others objected to the equation made.
Thereafter, according to the petitioner, committee consisting of the Secretary to Government, Revenue Department, the Commissioner for Commercial Taxes and representatives of each of the integrated units of the new State of Mysore was constituted for examining the representations received and to prepare an appropriate provisional inter-State Seniority list. It is alleged by the petitioner that the committee recommended that Sales Tax Officers, Grade II & Grade III of the former Bom. State & Class I and Class II Sales Tax Officers of the former Hyderabad State should be equated with the Sales Tax Officers of the Old Mysore State. He further alleges that in pursuance of the decision of that committee, the State Government published a revised inter-State Seniority list in 1960. A copy of that list has not been produced. The existence of such a list is denied by the respondents. On 3-5-1960 the State published what is called a final list of seniority. The validity of that list was challenged in Jaleel v. State of Mysore, 1961-39 Mys LJ 425: (AIR 1961 Mys 210).
This Court quashed his list in question on the ground that the State Government had no competence to prepare an inter-State Seniority List. It further held that such a list can only be prepared, in view of section 115(5) of the States Reorganisation Act, by the Central Government. It also opined therein that the power conferred on the Central Government by section 115(5) of the States Reorganisation Act is an original power. At the same time, this Court held that it is competent for the State Government for the purpose of carrying on the administration of the State to prepare a provisional inter-State Seniority List and to make promotions on that basis of that list. But such a list is subject to the final list prepared by the Central Government under the aforementioned section 115(5).
Thereafter, one K. Marappa Reddy, one of the respondents in this petition was promoted on 19-11-1962. According to the petitioner, the said Marappa Reddy is junior to him and has been given a rank lower to him in the 1960 list, which he calls as the Civil list. On the basis of those allegations the petitioner came up to this Court in Writ Petition No. 1587 of 1962 seeing a writ of mandamus requiring the State Government to consider his case for promotion in preference to that of Marappa Reddy. That petition was allowed and this Court directed the State Government to consider the case of the petitioner for promotion in preference to that of Marappa Reddy's case. The said decision is reported in Nagnoor v. State of Mysore, (1964) 1 Mys LJ 212:(AIR 1964 Mys 229). In obedience to that decision, the petitioner was promoted as an Assistant Commissioner of Commercial Taxes on 6-12-1963 with effect from 19-11-1962. Meanwhile the Central Government purported to finalise the list of the Gazetted Officers in the Commercial Tax Department. The said list was published by the State Government on 26th September 1963. As per that list, the petitioner's rank is 47 and therefore, he was not entitled for promotion. On the basis of that list the Government reverted the petitioner on the same day i.e.6-12-1963 on which it purported to have promoted him. It is this order of reversion that is being challenged in this writ petition.
(4) The contention of Sri Datar is that in view of the decision of this Court in G.M. Shankariah v. Union of India, (1965) 2 Law Rep.385, the list prepared by the Central Government and published by the State Government on 26th September 1963 must be considered to embody mere proposals; and the Central Government has yet to prepare a final majority list under sub-section (5) of Section 115 of the States Reorganisation Act. Proceeding further, he contended that once it is held that the list prepared by the Central Government is held to embody only proposals, it follows that that list has no legal basis. Therefore, the only authoritative authority list is that published in 1960, under which the petitioner's rank is No. 11, which means that he is senior to respondents 3 to 36. Hence the petitioner could not have been reverted on 6-12-1963.
(5) The power conferred on the Central Government under section 115(5) of the States Reorganisation Act is a statutory power. In relation to the conditions of service of the Officials of the State, the Central Government has no power excepting as to dividing and integrating the service of the personnel allotted to the States under the provisions of the States Reorganisation Act. The Central Government has no executive power either to equate the posts in the services of any State or to determine the seniority of the Officials serving in any State, where as the State Government, in view of Article 162 of the Constitution and Entry 41 of List II of 7th schedule read with Article 309 has power to equate one or more posts in the State services as well as the power to fix the seniority among its officials. Evidently it is because of that power, this Court held in (1961) 39 Mys LJ 425: (AIR 1961 Mys 210) that pending finalisation of the seniority among its officials. Evidently it is because of that power, this Court held in (1961) 39 Mys LJ 425: (AIR 1961 Mys 210) that pending finalisation of the seniority list by the Central Government, the State Government has power to prepare the provisional inter-State Seniority list. In Jaleel's case, (1961) 39 Mys LJ 425: (AIR 1961 Mys 210) this Court observed thus at p.440 of the reports (Mys LJ): (at p.219 of AIR).
'We think that the conferment of authority on the Central Government to make the integration did not deprive the Government of the State of its power to consolidate its Governmental operations through a transitional re organization of its administrative structure during the interregnum between the formation of the New State and the amalgamation of the integrant parts of its civil service by that Central Government.
Interim classification and equation of posts, promotions, postings and the like, and the displacement of a civil servant from the post or office, his continuance in which is guaranteed by section 116(1) of the States Reorganisation Act, are all matters falling within the scope of that power, provided its exercise does not infringe constitutional guarantees or violate the protection afforded by the proviso appearing under S. 115(7) of the States Reorganisation Act. It may not be easy to accurately define by any select combination of words, the frontiers of that power, but it is clear that the denial of that authority would only result in the paralysation of the apparatus of public administration.'
(6) A similar view was expressed by the Supreme Court in Ramaswamy v. Inspector General of Police, Mysore State, Bangalore Civil Appeals Nos. 972 to 977 of 1963: : (1970)ILLJ649SC . Wanchoo. J. Speaking for the Court case observed:
'The next point that has been urged is that in any case till final integration of service was made the State Government was not entitled to take into account the provisional list of Sub-Inspectors and could only proceed to give promotions and to make transfers region-wise according to the eligibility lists of former States from which the territories came to the New State and if that was done the petitioners being senior in their region could not be reverted.
We are of opinion that there is no force in this contention. It is true that for some time the State Government did proceed on this basis for there was no integrated list, whether provisional or final, available; but that does not mean that under the law it could not act on the provisional list once it was made till it was made final or that there was any estopped against the State Government in view of its having acted region wise for sometime. We have already indicated that territories from four states came to the Old State of Mysore to form the New State of Mysore and that necessarily raised difficult question of integration, and so that the State Government Orders. But the State is bound to be treated as one unit for purposes of administration.
We may also refer to S. 116(2) of the States Reorganisation Act, which makes it clear that after the appointed day the whole State will be treated as one unit and nothing would prevent the competent authority after the appointed day from passing in relation to any such Officer allotted to the New State any Order affecting his continuance in such post or Office. We cannot therefore accept the contention that the State Government was bound till the final list of integration was made, to make transfers only region wise. We can see nothing in law which prevents the State Government from proceeding according to the provisional list after such list was prepared.
We are of opinion that the view taken by the Mysore High Court in the earlier writ petitions after the framing of the provisional seniority list is correct and the State Government would be entitled to act on that list subject of course to this that if the provisional list is in any way altered when the final list is prepared, the State Government would give effect to the final list. The contention of the petitioners that the State Government should have continued to make promotions and transfers region wise only even after the provisional list was made therefore must fail.'
(7) From the foregoing it follows that the seniority List prepared by the State Government in 1960, if such a list had been prepared, would continue to be valid and enforceable till the Central Government prepares a seniority list under section 115(5) of the States re organization Act, unless the same is revised according to law by the State Government.
(8) There is controversy between the parties as to whether any list was really published in the year 1960. Sri E.S. Venkataramiah, the learned counsel for the 7th respondent contended that there is no such list. But this question cannot be investigated at this stage in view of the decision of this Court in (1964) 1 Mys LJ 212: (AIR 1964 Mys 229). Therein this Court proceeded on the basis that there was such a list. It is urged on behalf of the 7th respondent he was not a party to that decision and therefore, that decision is not binding on him. It may be so. But it must be noted that the petitioner had been reverted not on the basis that no list was published in the year 1960. The reason for his reversion was that as per the final list prepared by the Central Government, he was not entitled for promotion. Therefore, the only question that we have to consider now is whether his reversion on that basis is valid. Interested parties may take appropriate steps to establish that no seniority list was published by the Government in 1960. It may also be open to the 7th respondent to enforce his right according to law despite the decision of this Court in (1964) 1 Mys LJ 212: (AIR 1964 Mys 229). Those aspects are not germane for our present purpose. It may be that the grievance of the 7th respondent is well-founded.
(9) It was not disputed by any of the parties before us that in view of the decision of this Court in (1965) 2 Law Rep 385 the list prepared by the Central Government should be considered as mere proposals. This is what this court stated in Shankaraiah's case, (1965) 2 Law Rep 385 in that regard:
'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 that 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 appellant power. At one stage it asked the concerned State Governments 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 finalised those lists after hearing the objections of the concerned parties. This court in Jaleel's case, (1961) 39 Mys LJ 425: (AIR 1961 Mys 210) 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 appellant power but an original power.
After the decision of this court in Jaleel's case, (1961) 39 Mys LJ 425: (AIR 1961 Mys 210) the Central Government seems to have instructed the State Governments to prepare and publish Provisional Seniority Lists, then call for objections for 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 least 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 objection contemplated by section 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. He took the stand that the impugned decision is merely a provisional decision; the affected persons must be hereinafter given an opportunity to make their representatives on the proposals made by the Central Government; the Central Government will have to consider those representations 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 section 115(5) says that the Central Government may by order establish one or more Advisory Committees for the purpose of assisting it in regard to all persons affected by the provisions of section 115 and the proper consideration of any representations made by such persons.
As seen earlier, the said section 115 empowers the Central Government to divide the services in the former States and to integrate the services in the new States. That section has nothing to do with the 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 of those affected by the provisions of section 115. No person can be affected by the provisions of section 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 provisions of section 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 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 section 115(5) of the 'Act'. Whatever has been done by the State Government has been done outside the scheme of section 115. Therefore, any representation called for in respect of the steps taken by the State Government is not a representation contemplated by section 115(5) of the 'Act'.
'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 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.'
(10) These observations fully apply to the facts of the present case. For those very reasons we hold that the list published on 26th September 1963 should be considered as embodying an interim decision or mere proposals.
(11) Sri Keshava Iyengar, the learned counsel for the Union Government wanted us to consider the interim decision reached by the Central Government and communicated to the State Government as a direction issued under section 117 of the States Reorganisation Act. Mr. Jaganatha Shetty supported that contention. The notification published by the State Government on 26 September 1963 does not state that the Central Govt. had given any direction. The question whether the Central Government intended to issue any direction to the State Government under section 117 of the States Reorganisation Act is essentially a question of fact. The Central Government in its counter affidavit did not state that the decision reached by it was communicated to the State Government as a direction under section 117; nor is it the case of the State Government that there was any such direction. Therefore, even assuming that such a decision can be communicated as a direction under section 117, such cannot be said to be the case here. Therefore, we are unable to accept the contention of Mr. Keshava Iyer and Mr. Jagannatha Shetty that the interim decision reached by the Central Government and communicated to the State Government can be considered as a direction under section 117 of the States Reorganisation Act.
(12) This takes us to the contention advanced by the learned Advocate General on behalf of the State. In view of the decision of this Court in Shankaraiah's case, (1965) 2 Law Rep 385, he proceeded on the basis that the list prepared by the Central Government is liable to be altered after examining the representations made by the interested parties. But according to him, till such a final list is prepared, the list with which we are concerned in this case should be held to operative and binding. We are unable to accept this contention. The power given to the Central Government under section 115(5) of the States Reorganisation Act as seen earlier is a statutory power. That provision empowers the Central Government to prepare a seniority list. It does not empower the Central Government to reach interim decisions. That power can be exercised only once. As mentioned earlier, the Central Government has no executive power either to integrate the services of a State or to fix the seniority of officers serving in any particular State. The language of section 115(5) makes it abundantly clear that the power given under that section is a special power. The ambit of that power is limited. The power can be exercised only for the purpose mentioned therein. In this view we are unable to accept the contention of the learned Advocate General that the seniority list prepared by the Central Government has any legal force.
(13) The only other contention advanced by the learned Advocate General was that even though the list prepared by the Central Government may not have legal force, now that the Government of the State has published that list as a seniority list under Article 309 of the Constitution, that list must be held to be operative till the same is revised. This contention again cannot be accepted. It is evident from the pleadings that the Government of the State did not apply its mind to the list prepared by the Central Government. It accepted that list because it was of the opinion that that was a list prepared under S. 115(5). It had no responsibility for that list. The publication of that list was a merely ministerial act. Therefore, it cannot be said, with any force that the decision of the Central Government had been adopted by the State Government as its own decision. It is not even the case of the State Government that it had even considered the correctness of the list prepared by the Central Government. It is unnecessary to go into the question whether a list prepared by the Central Government under section 115(5) of the States Reorganisation Act is necessary to be published as a rule made under Article 309 of the Constitution. Evidently, as a measure of abundant caution the Central Government instructed the State Government that it will be advisable to publish its decision under S. 115(5) of the States Reorganisation Act as a rule under Article 309 of the Constitution. The facts of this case do not admit of the introduction of the fiction that the decision reached by the Central Government is deemed to be the decision of the State Government.
(14) In the result, this petition is allowed and the order impugned quashed. But this does not preclude the State Government from re-examining the question whether there was any list published in the year 1960 and taking such steps as law permits.
(15) In the circumstances of this case, we make no order as to costs.
(16) Petition allowed.