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D. Elayunni Kaimal Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberA.S. No. 901 of 1959
Judge
Reported inAIR1961Ker52
ActsConstitution of India - Articles 19(1) and 226
AppellantD. Elayunni Kaimal
RespondentState of Kerala
Appellant Advocate K. Velayudhan Nair and; V.S. Moothathu, Advs.
Respondent Advocate C.M. Kuruvilla, Govt. Pleader
DispositionAppeal dismissed
Cases ReferredAmar Singh v. State of Rajasthan
Excerpt:
.....the continuance in service of the permanent members of the public services of either covenanting state on conditions which will not be less advantageous than those on which they are serving immediately before the appointed day or the payment of reasonable compensation or retirement on proportionate pension'.the only guarantee contained in this provision is that the new conditions of service of the officers of the integrating states in the new state would not be 'less advantageous' than those on which they were serving immediately before the appointed day (1-7-1949). a like provision in the covenant relating to the integration of states in rajasthan came up for consideration before the supreme court in amar singh v. the only guarantee (assuming that the person in service at that time..........department.it appears that the rule in travancore before the integration of the travancore and cochin states on 1-7-1949 was that junior clerks, who were promoted to higher grade by virtue of their test qualifications, will retain seniority over their former seniors who subsequently pass the tests and secure promotion. on 7-5-1951 the government of travancore-cochin modified this rule to the effect that, if the senior got the test before the vacancy became permanent, he will be allowed to supersede the junior who got an officiating promotion earlier by virtue of his earlier test qualification.by ext. p1 order dated 21-10-1955 the government directed that the junior clerks who got promotion before 1-7-1949 to the higher grade by virtue of their test qualification superseding their.....
Judgment:

Madhavan Nair, J.

1. The appellant is an Upper Division Clerk in the Public Works Department, whose Original Petition (No. 726 of 1959) for quashing Exts. P-3 and P-4 circular orders of the Government of' Travancore-Cochin hits been dismissed by the learned Judge before whom it came up for admission. The matter relates to fixation of the rank of the petitioner in the integrated gradation list of the ministerial staff of the Public Works Department.

It appears that the rule in Travancore before the integration of the Travancore and Cochin States on 1-7-1949 was that junior clerks, who were promoted to higher grade by virtue of their test qualifications, will retain seniority over their former seniors who subsequently pass the tests and secure promotion. On 7-5-1951 the Government of Travancore-Cochin modified this rule to the effect that, if the senior got the test before the vacancy became permanent, he will be allowed to supersede the junior who got an officiating promotion earlier by virtue of his earlier test qualification.

By Ext. P1 order dated 21-10-1955 the Government directed that the junior clerks who got promotion before 1-7-1949 to the higher grade by virtue of their test qualification superseding their seniors in the lower grade would be allowed to retain their rank in the integrated gradation list. On 24-9-1956 the Government issued Ext. P3 order clarifying the matter further by stating that the rule for retention of seniority in the higher grade enunciated in Ext. P1 would apply only to cases of permanent vacancies that arose before 1-7-1949, but not to vacancies that became permanent subsequent to that date, to which latter vacancies the rule laid down in the order of 7-5-1951 will alone apply.

Ext. P-4 order of 25-10-1957 is only an affirmation of Ext. P-3 order. The contentions of the appellant, in the Original Petition which gave rise to this appeal, were that the orders in Exts. P3 and P4, not having been passed with notice to him, are not binding on him, that there is no provision of law enabling the Government to reconsider its prior orders and that the impugned orders violate the guarantee given to the appellant under the Covenant and are therefore illegal. The learned Judge before whom the Original Petition came up for admission held:

'The two grounds pressed are that the orders in question are passed in violation of service rules passed by the Government and the guarantee given in the integration Covenant. It has been repeatedly held by this Court as well as the Travancore-Cochin High Court that such violation is not justiciable.

I deferred decision of this O. P. for a few days as the petitioner's counsel wanted to produce authorities in his favour. No decision of this court or any other court has so far been placed before me. The Original Petition is therefore dismissed'. It is against this order that this appeal has been preferred by the appellant, reiterating the contentions raised by him in the Original Petition.

2. Orders of the nature of Exts. P-1, P-3 and P-4 are only executive orders not amounting to law, passed in the exercise of the executive functions of the State. An executive order may be changed at the will of the Government by another executive order, (See Krishna Das v. State of Travancore-Cochin, ILR 1955 Trav-Co 404 and K. Mohammed v. State of Kerala, 1957 Ker LT 608: (AIR 1958 Kerala 1) (FB)). In this case Exts. P-3 and P-4 do not even effect any material change in the order contained in Ext. P-1; they are only clarifications of the prior order by which the Government intimated that the rule in Ext. P-1 order was to apply only to cases of permanent vacancies that arose before the integration of Travancore and Cochin. The Government has the authority to make such clarifications.

Even if Ext. P-3 order is construed as a modification of the prior order contained in Ext. P-1, we are of opinion that the Government is perfectly competent to do so. It is not shown how such a clarification or modification can be effected only with notice to the officers who may be affected by the same. In laying down a policy governing the integration of services consequent on the reorganisation of States it is not possible or necessary to give notice to the officers of the two integrating States who may be affected by such policy. The petitioner cannot urge any claim under the Covenant of integration entered into by the Rulers of Travancore and Cochin, Referring to the Covenant between the East Punjab States to form Hatiala Union, the Supreme Court has observed in Dalmia Dadri Cement Co. Ltd v. Income-tax Commissioner, AIR 1958 SC 816 thus:

'When a treaty is entered into by sovereigns of independent States whereunder sovereignty in territories passes from one to the other, clauses therein providing for the recognition by the new sovereign of the existing rights of the residents of those territories must be regarded as invested with the character of an act of State and no claim based thereon could be enforced in a court of law'.

It therefore follows that the appellant cannot claim any relief based on the provisions of the Covenant of Integration of Travancore and Cochin.

3. Further, all that is provided in Article XIX (1) of the Covenant, which Article alone has any relevancy in this case, is:

'The United State hereby guarantees either the continuance in service of the permanent members of the public services of either Covenanting State on conditions which will not be less advantageous than those on which they are serving immediately before the appointed day or the payment of reasonable compensation or retirement on proportionate pension'. The only guarantee contained in this provision is that the new conditions of service of the officers of the integrating States in the new State would not be 'less advantageous' than those on which they were serving immediately before the appointed day (1-7-1949). A like provision in the Covenant relating to the integration of States in Rajasthan came up for consideration before the Supreme Court in Amar Singh v. State of Rajasthan, AIR 1958 SC 228 wherein it was held:

'The only guarantee (assuming that the person in service at that time can avail himself of it) was that the new conditions were not to be less advantageous than those on which the said persons were serving on 1-11-1948. There was no guarantee that they would be the same or better'. The pay and emoluments of the appellant were not effected and he retained the same grading. His earned increments were also not affected. All that is complained of is that he should have been given a rank senior to some others, who were originally senior to him, but whom he superseded by his temporary promotion in a temporary vacancy that arose just before the relevant date (1-7-1949). That he was not allowed to have such seniority cannot be said to affect in a less advantageous way his, conditions of service as they were on 1-7-1949. It was only a temporary arrangement and that will not vest any right in the appellant for the future. In Amar Singh's case, AIR 1958 SC 228 quoted above, the Supreme Court observed:

'It is well established that when one State is absorbed in another .......... by integration all contracts of service between the prior Government and its servants automaticially terminate and thereafter those who ................ serve in the new State ........ serve on such terms and conditions as the new State may choose to impose'.

So the conditions of service of the appellant after 1-7-1949 have to be regulated only by such rules as the Government of the new State might choose to lay down. He cannot have any legitimate complaint that his conditions of service in the former State have been affected by the rules laid down by the new State.

His posting to the higher grade in the former Travancore State was not permanent and on the basis of the temporary promotion that he had before the integration of the States he is not entitled to claim seniority over other officers in his permanent grade. It follows, therefore, that the order of the learned Judge in dismissing the Original Petition is correct; and the petitioner cannot have any legitimate grievance against the observations therein.

4. The appeal fails, and it is dismissed withcosts.


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