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Shaligram Anantram Chaturvedi Vs. Union of India (Uoi) Through the Secy., Ministry of Home Affairs - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 707-D of 1962
Judge
Reported inAIR1967P& H98
ActsStates Reorganisation Act, 1956 - Sections 115 and 116; Constitution of India - Articles 14, 16 and 226
AppellantShaligram Anantram Chaturvedi
RespondentUnion of India (Uoi) Through the Secy., Ministry of Home Affairs
Appellant Advocate H. Hardy,; Bishamber Lal and; M.S. Gupta, Advs.
Respondent Advocate S.N. Shanker and; Daljit Singh, Advs.
DispositionPetition dismissed
Cases ReferredP. K. Roy v. State of Madhya Pradesh
Excerpt:
.....questions of fact which could not be gone into in the present writ petition. (c) no right of the petitioner had been affected inasmuch he is at present posted as principal, government post graduate, basic training college, raipur, and is enjoying much better status than he was enjoying in madhya bharal. it has been left entirely to the central government as to how best it has to be achieved. it is well known that a statute may bar delegation of even administrative functions. ' 10. it has been stated by the respondents in their affidavit that the petitioner is enjoying a better status than the status he had before the merger. 11. in the result, the petition must fail and is dismissed but there will be no order as to costs......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.' in my opinion, the madhya pradesh high court mainly decided the question on the scope of the statute itself and it cannot be said that they decided that the functions of the central government in this behalf were judicial and not administrative. it is well known that a statute may bar delegation of even administrative functions. in the circumstances, i cannot be persuaded to hold that the central government was discharging judicial functions in the matter of integration of services.9. coming now to the second contention of mr. hardy i am of the opinion.....
Judgment:
ORDER

S.K. Kapur, J.

1. By this petition the petitioner has asked for quashing of the order dated 31st October, 1961 (Annexure XI to the petition) passed by the Government of India and communicated to the petitioner by Shri S.B. Khare, Under Secretary, Government of Madhya Pradesh. The petitioner is at present working as Principal, Government Post Graduate Basic Training College, Raipur, in the State of Madhya Pradesh. Before the reorganisation of States by the States Reorganisation Act on 1-11-1956 he was employed as Principal of the Teachers' Training College (L.T.) at Dewas, which is stated to be the only institution of this kind in the erstwhile State of Madhya Bharat. The State of Madhya Bharat merged in the new State of Madhya Pradesh from 1-11-1956 under the States Reorganisation Act. It is alleged that the State of Madhya Pradesh published a provisional integration list (Annexure I to the petition) setting out the principles formulated for being observed, as far as may be, in the integration of Government servants allotted for service to the new State of Madhya Pradesh. In the said notification under the heading 'Teaching' the Principal, Training College from Mahakoshal is shown at the top followed by three officers in category I. In the said list Professor of Training College and Professor incharge Senior section from Mahakoshal are shown above the Principal, L. T. College, Madhya Bharat, that is the petitioner. The principles set forth in the said notification for equation of posts in the scheme of re-integration inter alia were as under:

(i) Where there were regularly constituted similar cadres in the different units, the cadres will ordinarily be integrated on that basis: but

(ii) Where there were no similar cadres the following factors will be taken into consideration in equating the post.

(a) Nature and duties of post;

(b) Powers exercised by the officers holding a post, the extent of territorial and other charge held or responsibilities discharged.

(c) Minimum qualifications, if any, prescribed for recruitment of post; and

(d) the salary of the post.

The final gradation list was prepared in exercise of powers conferred by the proviso to Article 309 of the Constitution in accordance with the decision of the Government of India under the provision of Section 115(5) of the States Reorganisation Act, 1956. It was published in the Gazette dated 24th May 1962. In the said notification the Principal, Training College from Mahakoshal was shown in category I while the Principal, L. T. College from Madhya Bharat, that is the petitioner, in category II, even below the officiating Principals of Mahakoshal Training Colleges. It is alleged in the petition that both the Mahakoshal (residuary part of the former State of Madhya Pradesh which merged in the New Madhya Pradesh) and Madhya Bharat units had regularly constituted similar cadres so far as the Principals of the Training Colleges were concerned and they should have been equated together in accordance with the principles set out in the notification dated 9th September, 1959 (Annexure I referred to above). It is further alleged in the petition that--

(a) In the erstwhile State of Madhya Bharat separate cadre of Principal, Government Teachers Training College, Dewas, in Madhya Bharat Education Service, Class 1 in the grade of 600-30-750 existed from the commencement of the college in the year 1949 which was superior to that of a Deputy Director of Education in that State who was in the scale of 500-25-750, this, according to the petitioner, is supported by two notifications dated 12th of June, 1954, and 13th July, 1955. (Annexures 'C' and 'D' to the petition).

(b) In Mahakoshal unit there was no separate cadre of the Principal, Training College upto September, 1956. It was only on 6th September, 1956, after the States Reorganisation Act had received the assent of the President on 31-8-1956, that under memorandum No. 60735/ CR/78 XVIII (Appendix B to the petition) a separate cadre with grade of Rs. 850-50-900-40-1100, for Principals, Teachers Training Colleges, was created by the old State of Madhya Pradesh. The Principals of Training Colleges Mahakoshal region belonged to the Madhya Pradesh Educational Service Class 1 together with Deputy Director of Public Instruction, Divisional Superintendent of Education, Professors, Superintendent Reformatory School, in the scale of Rupees 350-350-25-600-Bar-26-700-700-Bar-30-850, prior to the aforesaid change effected on 6th September, 1956.

(c) Since there were regularly and duly constituted similar cadres in Mahakoshal and Madhya Bharat units of Principals, Training Colleges, there was no rational basis for the distinction made amongst Principals of Training Colleges of Mahakoshal unit and Madhya Bharat unit, as had been done in the integration list.

(d) According to the Integration Committee only when similar cadres did not exist in the integrating units that other factors such as the nature and duties, powers, responsibilities and salary etc. could be taken into consideration, but since there were regularly constituted similar cadres both in Mahakoshal unit and Madhya Bharat unit the aforesaid factors were irrelevant for the purposes of integration in the new State.

(e) From a chart filed along with the petition (Annexure III) it was obvious that whatever criteria be applied the Principal of Madhya Bharat Training College stood in a better position as compared to the Principals of Training Colleges of Mahakoshal unit.

(f) The nature of duties of the posts of Principals in the two units were the same.

(g) The relevant pay scale to be taken into consideration should have been as in force before the 6th September, 1956 when the petitioner was in a higher grade as compared to the Principals in Mahakoshal unit.

(h) The Training Colleges at Raipur and Khandwa in the Mahakoshal unit were granted provisional affiliation pending the consideration of the report of the Inspection Committee. These Colleges were inspected on 7th December, 1957, and were started in the second Five Year Plan about four months before the formation of the new State and these Colleges or the employees therein could not be treated as enjoying a higher status than the petitioner's College.

(i) Aggrieved by the aforesaid decision the petitioner made a representation which was forwarded to the Central Government and the same was accepted. A decision was accordingly taken that the post of the Principal, L. T. College, Madhya Bharat, should be equated with the post of the Principal, Training College, Mahakoshal, in category I of the Teaching Section.

(j) By memorandum dated 31st October. 1961, from the State of Madhya Pradesh the petitioner was informed that the Government of India, on reconsideration, had cancelled their decision. The petitioner submitted two other representations which were rejected.

2. In the light of the above facts the petitioner contends that by virtue of Section 116 of the States Reorganisation Act he was entitled to hold the same post in the new State of Madhya Pradesh and treating him in a lower category was violative of Articles 14 and 16 of the Constitution and the provisions of Sections 115 and 116 of the States Reorganisation Act. It is further contended that the respondent had no right to revoke the earlier decision taken on the petitioner's representation, in any case, without giving an opportunity to the petitioner of being heard. In the reply affidavit filed on behalf of the Union of India it has inter alia been stated that--

(a) In accordance with the Service Rules which came into force on 26th September, 1956 (Annexure R-3), services in Madhya Bharat were divided into three branches-- (1) Administrative (2) Teaching and (3) Technical. The nature and duties of the post and the powers exercised by the officers holding the posts in the three branches were different. The minimum qualification required for a Deputy Director, apart from the other factors, was about 7 years administrative and teaching experience in a responsible post, which was not necessary in the case of a Principal. The personnel of the three branches were also not freely interchangeable.

(b) The L. T. College of Madhya Bharat was not affiliated to any University till 1957 while the Training Colleges of Mahakoshal were affiliated to the Universities of the region.

(c) The Director of Education, Madhya Bharat, used to award a departmental certificate of Licentiate in Teaching to the successful students while in Mahakoshal Degree and Diplomas in Teaching used to be awarded in accordance with the statutory rules prescribed by the Universities.

(d) The L. T. College Madhya Bharat admitted only 75 graduate teachers for training. The training Colleges in Mahakoshal as a rule had B. T. Class of 64 graduates and two diploma, in Training Classes of 64 each. In the Training College of Jabalpur the B. T. Class consisted of 128 graduates and the diploma class of 128 under-graduates. In addition this College had various other classes and facilities as set out in paragraph 5 of the reply affidavit.

(e) The scale of the post of Principal L. T. College Madhya Bharat was Rs. 600-750 having an average value of Rs. 700/- while the scale of pay of the post of Principal, Training Colleges Mahakoshal was Rs. 850-1100 having an average value of Rs. 1016-10-8 on 1-11-1956.

(f) Though the pay scale of the Principals. Training Colleges, Mahakoshal, was revised in September 1956, but the revision was not an isolated event made with a view to enable the said officers to gain any advantage. Prior to the revision the pay scale of the post was Rs. 350-850. In addition a special pay of Rs. 150/- per mensem as well as rent free accommodation were allowed to the employees. The Government of erstwhile Madhya Pradesh had appointed a Committee in the year 1965 and it is on the recommendation of the said Committee that the pay scale was revised. The facility regarding rent free accommodation and special pay of Rs. 150/- was on the aforesaid revision withdrawn.

(g) Various Other factors as set out in paragraph 5 of the reply affidavit such as the teaching staff under the control of the Principals of different units, their mode of recruitment and qualifications for recruitment showed that the Principals in Mahakoshal unit stood in a better position.

(h) The Central Government had to determine the entire position with reference to the appointed day, that is 1-11-1956.

(i) The petitioner had not been adversely affected by the impugned order. The Principals of Training Colleges in Mahakoshal unit had longer service to their credit in class II posts and before reversing the decision taken by the Central Government on the representation of the petitioner all the facts stated in the representation had been taken into consideration and no oral hearing in the circumstances was called for.

3. Mr. Hardy, the learned counsel for the petitioner, has attacked the impugned order principally on two grounds, He says that (1) the authorities while passing the impugned order dated 31st October, 1961 (Annexure XI) were acting in a quasi-judicial capacity and the same could not be passed unless the petitioner had been given an opportunity of being heard; (2) having regard to the provisions of Sections 115 and 116 of the States Reorganisation Act the petitioner was entitled to an equitable treatment which necessarily meant that no one could be wrongly placed above the petitioner in re-integrating the services; and lastly that there had been a violation of Articles 14 and 16 of the Constitution. Mr. Shanker, the learned counsel for the respondent, on the other hand, submits that --

(a) The question as to the status enjoyed by the petitioner in the erstwhile Madhya Bharat State and that enjoyed by the Principals of other institutions in Mahakoshal unit was not justiciable and, in any case, it involved disputed questions of fact which could not be gone into in the present writ petition.

(b) In any case, the petitioner was on merits rightly placed in the position allotted to him.

(c) No right of the petitioner had been affected inasmuch he is at present posted as Principal, Government Post Graduate, Basic Training College, Raipur, and is enjoying much better status than he was enjoying in Madhya Bharal. He has no right under the States Reorganisation Act to claim that he should be placed at par with the Principals of other colleges. The question relating to equation of posts and absorption of persons in certain posts and appointment of persons to such posts cannot be regarded as falling within the words 'conditions of service' in Section 115(7) of the said Act and consequently it was not correct to say that conditions of services of the petitioner had been varied to his disadvantage.

(d) Since no right of the petitioner had been affected it was not open to him to claim any relief in the matter

(e) There was no violation of Articles 14 and 16 of the Constitution inasmuch as the petitioner had been rightly placed in the position allotted to him.

4. As regards the first contention of Mr. Hardy I am of the opinion that in passing the said order the authorities were not acting in a quasi-judicial manner. Mr. Hardy lays emphasis on Section 115(5)(b) of the States Reorganisation Act and says that the said provision postulates consideration of representations made by the persons who were to be absorbed in the services of the new State. He says that if the Central Government were enjoined to consider representations at the initial stage there was no reason why they should not give a hearing to an employee when changing or cancelling an earlier decision. Mr. Hardy does not say that the Central Government could not pass the impugned order dated 31st October, 1961 have been passed only after hearing the petitioner. The respondent has stated on affidavit that while passing the said order the government had taken into consideration all the relevant facts in the petitioner's representation submitted in 1959. That being so, it was, in my opinion, open to the Central Government to consider those materials afresh and revoke the earlier order. If the Central Government in taking such decision were acting in a quasi-judicial capacity the petitioner may have had some grievance and could have possibly said that the Central Government should have given him an opportunity to show cause against the order proposed to be made. If on the other hand, the functions of the Central Government were purely administrative. I see no justification in holding that the Central Government could not on the basis of the representations already on the record revise its decision. The question, therefore, resolves itself to the determination of the nature of functions that the Central Government were expected to perform in the matter of integration. There are a number of cases where tests have been laid down for distinguishing between quasi-judicial functions and administrative functions. The tests laid down in The King v. Electricity Commissioners, (1924) 1 KB 171, and by Lord Justice Slesser in The King v., London County Council, (1931) 2 KB 215, 233, have been approved by their Lordships of the Supreme Court in Province of Bombay v. K.S. Advani, 1950 SCR 621: (AIR 1950 SC 222), in the former case Lord Justice Atkin (as he then was) observed: 'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King s Bench Division exercised in these writs.'

Lord Justice Slesser in the latter case referred to above separated the four conditions laid down by Atkin. L. J: as under:

'Wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duly to act judicially (4) act in excess of their legal authority -- a writ of certiorari may issue.'

5. The following statement of law on this point by the Chief Justice of the Bombay High Court was approved by Mahajan, J. in K.S. Advani's case, 1950 SCR 621: (AIR 1950 SC 222):

'In the first place, a duty must be cast by the legislature upon the person or persons who is or are empowered to act to determine or decide some fact or facts. There must also be some lis or dispute resulting from there being two sides to the question he has to decide. There must be a proposal and an opposition. It must be necessary that he should have to weigh the pros and cons before he can come to a conclusion. He would also have to consider facts and circumstances bearing upon the subject. In other words, the duty cast must not only be to determine and decide a question, but there must also be a duty to determine or decide that fact judicially.'

6. What is meant by the requirement that the question determined must be one 'affecting the rights of subjects' has been considered in various judgments and the deduction therefrom is that--

(a) The determination may be either one that purports to vary or extinguish existing legal rights, or one that purports to declare existing legal rights by the interpretation of law or of statutory norms and their application to a given set of facts; and

(b) The 'rights' affected may be rights to the enjoyment of personal liberty, to the pursuit of a profession or other calling, to the retention of unincumbered ownership and possession of property, to the carrying on of trade and the free negotiation of other contracts.

7. The above catalogue is not, however, exhaustive as the term 'rights' is to be under stood in a very broad sense, and is not to be confined to the jurisprudential concept of rights to which correlative legal duties are annexed. It comprises an extensive range of legally recognised interests, the categories of which have never been closed.

8. Then I come to the other requirement, namely, 'the duty to act judicially'. If an authority is required to decide a lis after weighing the materials on both sides by bringing to bear a judicial approach on the subject it can be said to be under duty to act judicially. In other words, an authority is likely to be held to act in a judicial capacity if it determines litis inter partes or issues broadly analogous to litis inter partes. Even in cases where it is not required to determine issues analogous to litis inter partes it may be held under obligation to act in a judicial capacity if it has to determine questions in relation to the rights of individuals by applying pre-existing legal norms to factual situations. Again, an authority which is neither required to determine issues analogous to litis inter partes nor empowered or required to determine questions of legal right may nevertheless be held to act in a judicial capacity if it exercises discretionary powers which directly affect the interests of individuals and in which a policy element is absent or is relatively small. Looking at the provisions of Sections 115 and 116 of the States Reorganisation Act it appears to me that the Central Government was not charged with any duty to decide lis inter partes or to determine any fact judicially. The Central Government is required only to make adjustments in view of the formation of the new State and to determine the successor State to which persons serving in the merged State shall be finally allotted for service. In doing so the Central Government may have to consider various aspects and would to a very large extent be guided by the policy that may have to be adopted in the integration of services. It may be pointed out that no right is given to the employees to require the Central Government to carry out the adjustment or integration in a particular manner. It has been left entirely to the Central Government as to how best it has to be achieved. In my view, the mere fact that the Central Government has been empowered to establish advisory Committees for the purposes of assisting it in the proper consideration of representations made by the employees is no ground for holding that it is required to act judicially. No doubt, proviso to Section 115 provides a limited immunity against variation of conditions of service to the employees' disadvantage but as held in A.J. Patel v. Stale of Gujarat, AIR 1965 Guj 23 (FB), the question relating to equation of posts and absorption of persons in certain posts and the appointment of persons to such posts cannot be regarded as falling within the words 'conditions of service' as appearing therein. Again, Section 116 makes provisions for continuance of officers in the same posts in the newly formed States but neither the provisions of Section 115 nor of Section 116 lead me to the conclusion that in exercising powers thereunder any authority can be said to be acting judicially. Having regard to the various principles discussed above I am of the view that the matter of equation of posts and the appointment of persons thereto is purely an administrative function. It is suggested that in exercising functions under the aforesaid provisions the authority concerned has to see that the conditions of service of an employee are not varied to his disadvantage. But that is a right of the individual concerned and not a right requiring determination in relation to the rights of other employees. In other words, if in the process of integration a person is appointed to a particular post the art requires that his conditions of service will continue as before but no right has been conferred on an employee by this statute to say that his right to be appointed should be determined by application of certain set of principles and he should be placed in a category in which some others are placed. I must refer to the decision of Madhya Pradesh High Court in P. K. Roy v. State of Madhya Pradesh, AIR 1964 Madh Pra 307. In that case the question which came before the Bench was whether the Central Government was competent to delegate its functions in the matter of integration required to be performed by the Central Government under Section 115 of the States Reorganisation Act. Their Lordships held that the said functions had been entrusted exclusively to the Central Government and could not be delegated. The decision was based mainly on the ground that the statute required the Central Government itself to carry on those functions and it could take assistance only from advisory committees constituted in pursuance of Sub-section (5) of Section 116. Their Lordships also expressed a view that:

'In any case, 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.'

In my opinion, the Madhya Pradesh High Court mainly decided the question on the scope of the statute itself and it cannot be said that they decided that the functions of the Central Government in this behalf were judicial and not administrative. It is well known that a statute may bar delegation of even administrative functions. In the circumstances, I cannot be persuaded to hold that the Central Government was discharging judicial functions in the matter of integration of services.

9. Coming now to the second contention of Mr. Hardy I am of the opinion that there has been no violation of either the provisions of the States Reorganisation Act or of Articles. 14 and 16 of the Constitution. Mr. Hardy strongly relies on the Full Bench Decision of the Gujarat High Court in A. J. Patel's case, AIR 1965 Guj 23 (FB). He says that Section 116 (4) read with the proviso to the said section and Section 116 confer a right on an employee of equitable treatment meaning thereby that no one should be wrongly placed above another employee thereby prejudicing his future prospects. On closer scrutiny I find that the said decision is in fact against the petitioner. Their Lordships of the Gujarat High Court in the said case held--

'From this Article (Article 309 of the Constitution) it is evident that rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and conditions relating to recruitment and relating to appointment to public service and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts. By virtue of the provisions contained in Sub-section (7) of Section 118, the powers of State Government in relation to the determination of the conditions of service of persons serving in connection with the affairs of the State have been preserved after the appointed day subject to what is stated in the proviso to that sub-section. By virtue of the proviso, the conditions of service of the allotted personnel applicable immediately before the appointed day are not liable to be varied to the disadvantage of such persons without the previous approval of the Central Government. In the present case we are concerned with the question of equation of posts and of the absorption of persons in certain posts and the appointment of persons in certain posts and not the conditions of service of persons appointed to certain posts, and the provisions of Section 115(7) cannot be invoked in that connection.'

10. It has been stated by the respondents in their affidavit that the petitioner is enjoying a better status than the status he had before the merger. That being so, it cannot be said that his conditions of service have been varied to his detriment. The States Reorganisation Act does not confer a legal right on an employee to be placed in a particular position. All that it guarantees is that his conditions of service should not be varied. From the reply affidavit it is patent that there has been no such variation to the disadvantage of the petitioner. The reply affidavit further shows that the petitioner has been fixed in a particular place after consideration of all materials including the relative positions of other employees. It is not open to me to investigate those facts in a petition under Article 226 of the Constitution. Even if it be assumed that by virtue of Articles 14 and 16 of the Constitution the petitioner has a right to be placed above certain persons who were allegedly enjoying inferior status to him before the merger it cannot on the material before me be said that he has been discriminated.

11. In the result, the petition must fail and is dismissed but there will be no order as to costs.


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