1. The petitioners, who are all Assistant Engineers in the Public Works Department of the Government of Madhya Pradesh, have filed this petition, under Article 226 of the Constitution for an appropriate writ, order or direction, including a writ of certiorari for quashing the Madhya Pradesh Government, General Administration (Integration) Department, Notification No. 782-557-I-Integ., dated 6-4-1962 (Annexure 1), publishing the final gradation list of, the establishment of Buildings and Roads and Irrigation (excepting that relating to Category I to Category V of Civil Section already published under General Administration (Integration) Department's Notification No. 336-557-I-Integ., dated the 7th January, 1962 in the extraordinary issue dated the 8th February 1962 of the Gazette) in the Public Works Department, and a writ of mandamus prohibiting the State Government from giving effect to the said final gradation list, inter alia, on the following grounds:
(1) That it was not made in accordance with the provisions of Section 115(5) of the States Reorganization Act, but is in contravention of those provisions.
(2) That it was not even in accordance with the principles laid down by the Government of India for its preparation.
(3) That, in so far as the State Government in drawing up the final gradation list followed a criteria different from the one followed in preparing the provisional gradation list, on which representations had been invited, it in effect denied to the persons affected thereby the right to make a representation as envisaged in Section 115(5(b) of the States Reorganization Act.
2. The petition was contested by the State Government, inter alia, on the ground that as the Central Government was the authority to pass final orders in matters arising under Section 115(5) of the States Reorganization Act, the final gradation list could not be questioned unless the final authority sanctioning the same had been heard. It was, therefore, contended that the Central Government was a necessary party to the petition. It was further contended that the final gradation list had been prepared and published in accordance with the instructions of the Government of India contained in its Ministry of Home Affairs letter No. 9/10/59-SR(S), dated 11-11-1959 and after due consideration and decision by the Government of India of the representations made by the petitioners against the provisional combined gradation list. It was, therefore, claimed that the final gradation list was made and published strictly in accordance with the provisions of Section 115(5) of the States Reorganization Act.
3. To obviate any objection on the ground of non-joinder of the Union of India as a party respondent to these proceedings, the petitioners applied to join them as respondent No. 2. They wereallowed to do so; and the Union of India on being noticed, has contested the petition practically on the same grounds as those urged by the State Government.
4. In order to correctly appreciate the problem involved, we shall first briefly examine the provisions of the States Reorganization Act (hereinafter referred to as 'the Act') to determine whether what was done by the respondent was in conformity with the Act.
5. Article 309 of the Constitution deals with; the recruitment and conditions of service of persons serving the Union or a State. But special problems arise when new States are formed or when parts of an existing State are transferred to another State, because then a decision has to be taken as to the division of service between the two States as also in regard to their integration witk the services of the new State. Article 3 of the Constitution provides that Parliament may by law form new States and/or alter areas, boundaries and names of the existing States, and it is, therefore, in the fitness of things that that body may also impartially and equitably divide and integrate the services, so that there may not be any feeling in them that they are not dealt with justly. This is all the more important because division and integration done by the Officers of a State, who will naturally belong to one or the other of the integrating units, may be open to criticism on the ground of regional prejudice or bias. Once the services have been so divided and integrated, their conditions of service thereafter are naturally to be governed by the provisions of Article 309 of the Constitution.
6. To that end provisions were made in Part X of the Act, which dealt with provisions as to services. Section 115 dealt with services other than All India Services. Sub-section (1) of Section 115, so far as relevant for our purposes, provided that every person, who immediately before the appointed date was serving in Bhopal or Vindhya Pradesh, shall as from that date be deemed to have been allotted to the principal successor State, i.e., the new State of Madhya Pradesh. Similarly, Sub-section (2) of Section 115 provided that a person serving in the old State of Madhya Pradesh shall provisionally continue to serve the new State of Madhya Pradesh unless he was required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State. Subsections (3) and (4) of the section then made provisions for the nomination of a successor State by the Central Government which, in our case, is the new State of Madhya Pradesh, and for making available persons for serving in the State if they had been provisionally allotted to any other State. Then we have the crucial Sub-section (5) which specifically deals with division and integration of services consequent on the reorganization of States. It says:
'The Central Government may by order establish one or more Advisory Committees for the purpose of assisting it in regard to--
(a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of the section and the proper consideration of any representations made bysuch persons.'
Sub-section (6) then says that the provisions of the section shall not apply in relation to any person to whom the provisions of Section 114 apply; Sub-section (7) provides that as from the appointed day, the conditions of service of persons serving in the State of Madhya Pradesh shall be governed by the provisions of Chapter I of Part XIV of the Constitution provided that the conditions of service applicable to a person immediately before the appointed day shall not be varied to his disadvantage except with the previous approval of the Central Government.
7. It would thus be seen that by Sub-section (5) aforesaid the Act cast a specific and a special responsibility on the Central Government in regard to--
(a) the division and integration of services,
(b) the ensuring of fair and equitable treatment to all persons affected by the division and integration and
(c) the proper consideration of any representation made by such persons;
and all that they were permitted to do in the accomplishment of the said task was to take the assistance of one or more Advisory Committees. In our opinion, by specifically providing that they could take the assistance of the Advisory Committee only, assistance from any other body or committee was by implication completely ruled out. Consequently, this task of division and integration was the special responsibility of the Central Government, which they were required to perform with the assistance of Advisory Committees and which they could not delegate to any other Government, person or body of persons. The State Government had thus no power to do the work of integration as a delegate of the Central Government.
8. The work of integration, in our opinion, broadly required the settling of principles on which the work was to be done; the working out of details and the arrangement of names of persons in lists, in accordance with the principles so settled, the publication of the lists so made together with the principles on which they had been compiled, the invitation of representations, if any, by the person affected thereby; the consideration of these representations and deciding them., and the publication of the final gradation list incorporating their decision on the representations submitted to them.
9. It would be observed that in the steps we have enumerated above, some functions are of primary importance and some others are more or less of a ministerial character. There can be no doubt that the settlement of principles on which integration is to be done, the preparation of lists on those principles and inviting representations thereon, and the consideration of representations by the person affected by the integration done on those principles are of crucial importance and cannot be delegated. It has to be performed by the Central Government with the assistance of AdvisoryCommittees only--assistance from any other source! being impliedly barred. As regards the publication of the provisional list on which representations are invited as also the publication of the final list incorporating decision on those representations, the work is purely ministerial which may be delegated. Similarly, the preparation of the provisional list on the principles enunciated by the Central Government with the assistance of Advisory Committees, and the compilation, of the final gradation list incorporating the decisions of the Central Government on the representations of the persons affected, would be better done by the Central Government itself with the assistance of Advisory Committees, because the work cannot be called purely ministerial, and are important steps in the scheme of integration.
10. Thus, even though the Act specifically provided that the work of integration was to be done by the Central Government with the assistance of Advisory Committees, by a curious process of reasoning it was decided that as the general sense among the State representatives was that the work of integration should be left to the State Government and the Central Government need not be associated with it, the work of integration of services should be dealt with by the State Government themselves in the light of the general principles already devised and agreed to at the summer conference of the Chief Secretaries'. While so deciding, the Central Government expressed the pious hope that 'in devising the appropriate machinery for handling the work of integration of service personnel, the State Governments would pay due regard to the need for constituting the machinery in such a manner as would inspire confidence among persons drawn from different units'. (See Annexure R-I).
11. We have not been able to discover any provision under the Act or elsewhere which could permit such a delegation of functions by the Central Government to the State Government. By the Act, the duty to integrate the services was specifically cast on the Central Government. No doubt, while doing the work, they could take the help of Advisory Committees; but they had no power to delegate their functions to any other authority; and in so far as they have purported to so delegate their functions, their act is ultra vires the Act.
12. The learned counsel for the State and the Union, Shri Bhave, very vehemently contended that section 117 of the Act conferred power on the Central Government to delegate its functions under the Act to the State Governments. That section says--
'The Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions.'
In our opinion, the section cannot be construed to authorise delegation of powers by the Central Government to the State Government. The section, no doubt, empowers the Central Government to give directions to a State Government, as mayappear to it to be necessary for the purpose of giving effect to the provisions of Part X of the Act, but that is not the same thing as saying that it shall delegate its functions, specifically assigned to it under the Act, to the State Government. In any ease, any matter, which requires a judicial determination of the Central Government cannot be left to the determination of the State Government on the ground that it was only issuing to it directions for the purpose of giving effect to the provisions of the Act. Such directions, even 'if given, would amount to an unauthorized abdication of jurisdiction and power by the Central Government and an illegal assumption of jurisdiction and power by the State Government.
13. 'In Pradyat Kumar v. C. J. of Calcutta, (S) AIR 1956 SC 285, their Lordships of the Supreme Court observed, as follows :
'It is well recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides, is the ultimate responsibility for the exercise of such power'.
Judged on the aforesaid principle we are of opinion that the power of formulating the principles on the basis of which integration was to be done and the provisional lists prepared, as also the power to decide representations and the preparation of final gradation lists, could not be delegated; as these were the pillar stones on which the ultimate responsibility for the exercise of the power of integration rested.
14. It was brought to our notice that the Mysore High Court in M. A. Jaleel v. State of Mysore, AIR 1961 Mys 210 had held that the ultimate responsibility for the exercise of the power to make the integration, could not be delegated, though the preliminary steps and measures for the integration, the collocation of relevant facts, the preparation of provisional lists, the gathering of material and the performance of such other incidental and subsidiary acts as would aid and assist the final integration are all, therefore, acts which would fall within the orbit of permissible delegation and therefore delegable'. It further held that the State Government could at the request of the Central Government or even on its own motion make the entire preparation and ground work for the integration, is, we think, abundantly clear; but the power of the Central Government to assign to the State the authority to preliminarily decide objections to the provisional lists is similarly unquestionable, so long as the power to make a final adjudication on those objections is not abdicated, and, whoever the State might do or may be called upon to do in this matter is only a step in the process of the ultimate integration, the power to make which is entirely that of the Central Government'.
In our opinion, the enunciation of delegatable powers is rather wide, because, though we agree that the gathering of material and the doing of all incidental and subsidiary acts as would assist the Central Government in its task of integration could be delegated, we do not consider that theformulation of principles on the basis of which the! provisional lists were to be prepared and the preparation of such lists could be called incidental or subsidiary acts, which could validly be delegated under the provisions of section 117 of the Act.
15. Examining further, we find that while delegating the functions of integration to the State Government, the Central Government by Notification No. 62/22/56-SR (3), Government of India, Ministry of Home Affairs, New Delhi, dated 20-5-1958, as amended, did constitute an Advisory Committee and defined its functions to be --
(i) To advise the Central Government in regard to the division and integration of members of the gazetted cadres of the State Services among the new State and the States of Andhra Pradesh and Madras; and
(ii) To make recommendations to the Central Government with a view to ensure that fair and equitable treatment is given to the service personnel of the following categories of State Services who are affected by States Reorganization and to consider representations submitted by them.
(a) Those belonging to Gazetted cadres prior to States Reorganization; and
(b) those who having belonged to non-gazetted cadres before States Reorganization have been integrated with those of category (a) above.' But, it appears that in practice its functions were only to examine the representations submitted to the Central Government against the provisional gradation lists prepared by the State Government on its own initiative.
16. On the other hand, in conformity with the delegation of the function of integration of the State Government, the State Government of Madhya Pradesh constituted two committees -- a Cabinet Committee and a Secretarial Level Committee -- with allocation of functions between them in the following manner:
'(i) The Secretariat Level Committee should make recommendations about the principles for equation of posts and fixation of seniority of individual government servants for approval by the Council of Ministers.
(ii) The recommendations of the Secretariat Level Committee in the matter of equation of posts ' in each department will be laid before the Cabinet Committee for approval.
(iii) The General Administration (Integration) Department will, in accordance with the principles approved by the Council of Ministers, prepare provisional gradation lists of gazetted officers borne on different cadres and sub-cadres in consultation with the respective Secretary and Head of Department.
(iv) The provisional gradation lists in respect of non-gazetted staff will be prepared by the administrative department in accordance with the principles approved by the Council of Ministers. 11} will be scrutinized in the General Administration (Integration) Department.
(v) The provisional gradation lists for gazetted government servants as prepared by the General Administration (Integration) Department andthose for non-gazetted government servants as scrutinized by that department will be put up for approval by the Cabinet Committee and published after they are duly approved'.
17. Provisional Gradation Lists were accordingly prepared and published on 12-9-1959, and representations invited against them. It appears that this list was prepared by the State Government on principles formulated by itself. These were, in the matter of equation of posts,--
'(i) Where, there were' regularly constitutedsimilar cadres in the different integrating units the cadres will ordinarily be integrated on that basis; 'but
(ii) where, however, there were no such similar cadres the following factors will be taken into consideration in determining the equation of posts; (a) nature and duties of a post; powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged;
(c) the minimum qualifications, if any, pres-cribed for recruitment to the post; and
(d) the salary of the post.'
and, in the matter of determining relative seniority
'(a) Such seniority will be determined on the basis of the length of continuous service, whether temporary or permanent in a particular cadre (excluding periods for which an appointment is 'held in a purely stop-gap or fortuitous arrangement) :
Provided that where a service or cadre Consists of compartments/grades and where the normal method of recruitment to a higher compartment/ grade is by promotion from a lower compartment/ grade, continuous service will ordinarily be reckoned from the date of commencement of service in the lowest compartment/grade, on a salary not below such limits as may be specified in this behalf;
Provided further that the inter se seniority of Government servants drawn from the same unit will not ordinarily be disturbed; and
(b) other factors being equal, seniority will toe determined on the basis of age.' (See Annexure II).
In our opinion, the preparation of the provisional gradation lists by the- State Government in the manner done was clearly unwarranted by the provisions of the Act.
18. Now, while considering the representations, the Secretary, Central Advisory Committee informed the Special Secretary to the Government of Madhya Pradesh, General Administration (Integration) Department, Bhopal that the combined gradation lists had been prepared not on the basis of continuous service in the equated grade but on the basis of length of total service including service in the lower cadres'. Consequently, in order to enable it to consider the representations from all points of view, it requested the State Government to prepare lists 'on the conventional formula of continuous service in the equated (grade), subject to maintenance of inter se seniority. It further enjoined on it to 'take steps to ensure that the alternative lists prepared on the conventionalformula are duly checked by the Departments concerned by reference to the service records of the officers so that no inaccuracies creep in'. On such lists being received (of which no notice was given to the persons affected by publication ot otherwise), the Government of India, in consultation with the Advisory Committee., inter alia, decided that the procedure adopted by the State Government for determining inter-State seniority on the basis of the length of total service in gazetted posts should not be approved'. It further held that the 'inter-State seniority should be determined only on the basis of continuous length of service, whether in a temporary or permanent capacity, in the equated grade'; and, therefore, directed that 'the revised combined gradation list prepared! according to the normal principle of fixing interstate seniority on the basis of length of continuous service in the equated grade and forwarded by the State Government to the Central Advisory Committee', had been approved, subject to certain modifications mentioned therein with which we are at the present not concerned. The order further directed a re-arrangement of the names, and further observed that 'a re-arrangement of the names would have repercussions on the ranks of officers from other regions'; and accordingly suggested that 'the entire matter may be reviewed by the State Government in the light of the position stated in the two preceding paragraphs and the necessary changes carried out in the combined gradation list'. (See Ann. 2 R-7).
19. It would thus be seen that not only was the integration not done by the Central Government, but that even the right of representation was denied to the persons affected by the revised combined gradation list, as these lists were never published nor were any representations invited against them, even though it was clearly realized that far-reaching changes were being introduced into the provisional combined gradation lists as originally published by expressly disapproving the principles adopted by the State Government in compiling them, and by adopting another method of which no notice-was ever given to the persons affected thereby.
20. In this connection it is pertinent to note that the instructions issued by the Government of India for the publication of the Final Common) Gradation Lists, even in the view it had taken in regard to the provisions of Sub-section (5) of section 115 of the Act, were----
'(i) as regards procedure for publishing Common Gradation Lists, the Government of India agree that the State Government will publish the final common gradation lists in its official Gazette, after following the procedure indicated herein;
(i) the State Government has to satisfy itself that the following steps have been taken before) it decides to publish the Common Gradation Lists:
(a) that the Government of (Name of the State) effected the integration of services of the . . . . . . Department/Establishment
and prepared the provisional common Gradation Lists in accordance with the principles laid down by the Central Government;
(b) that the Government of (Name of the State) published in the Official Gazette of that)State the said provisional Gradation Lists and afforded an opportunity to the service personnel affected to represent to the Government of India under section 115 (5) of the States Reorganisation Act, 1956;
(c) that the representations, if any of officers affected had been decided in consultation with the Central Advisory Committee/State Advisory Committee as envisaged under section 115 (5) of the States Reorganization Act, 1956; and
(d) that the above-mentioned decisions have been correctly incorporated in the final common Gradation Lists.'
21. It would be observed that even here it was clearly envisaged that the service personnel affected by the integration shall have a right of representation against a Provisional Combined Gradation List prepared in accordance with the principles laid down by the Central Government. Consequently, if, for any reason, the principles on which the first published Provisional Combined Gradation List had been prepared were changed at the instance of the Central Government, it was incumbent on the State Government to re-prepare its list in the light of the new principles and re-publish it, so that the persons affected by such a list may have an effective opportunity to represent against it. In our opinion, it was also incumbent on the State Government to re-publish its list when its basis for determining inter-State seniority was changed from one based on 'length of total service in gazetted posts' to that of 'continuous length, of service whether in a temporary or permanent capacity in the equated grade; and that having not been done, even the procedure accepted by the State Government on the basis of the instructions of the Government of India, contained in Annexure 2, R-4, was not followed.
22. In the view we take, we need not examine in detail the grievance of the petitioners that the integration in question had been done without due regard to the length of their continuous period of service as Assistant Engineers in the cadre of the erstwhile State of Madhya Pradesh and that there was no basis for the adoption of the 'assumed date' in their case.
23. In the result, we hereby quash the Notification of the General Administration (Integration) Department, Bhopal, dated 6.4.1962, (Annexure 1) publishing the Final Gradation List of the Establishment of Buildings and Roads and Irrigation in the Public Works Department, and further direct the Union Government to complete the work of the integration of the services in the aforesaid Department in conformity with the provisions of Sub-section (5) of section 115 of the States Reorganization Act, 1956 without delegating its essential functions to the State Government as explained above, except that it may take the assistance of one or more Advisory Committees in its task.
24. The petition is thus allowed with costs.Counsel's fee Rs. 250/-.