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G. Appukkuttan Pillai Vs. Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 593 of 1965
Judge
Reported inAIR1970Ker110
ActsConstitution of India - Articles 4, 73, 162, 226, 245, 246, 256 and 309; States Reorganisation Act, 1956 - Sections 115, 115(5) and 115(7)
AppellantG. Appukkuttan Pillai
RespondentGovernment of India and ors.
Appellant Advocate K. Velayudhan Nair and; M.C. Sen, Advs.
Respondent Advocate C. Sankaran Nair, C.G.P.,; Adv. General,; K. Raghavan Na
DispositionPetition dismissed
Cases ReferredDr. N. Desaiah v. Government of Andhra Pradesh
Excerpt:
constitution - natural justice - articles 4, 73, 162, 256 and 309 of constitution of india and section 115 of states reorganisation act, 1956 - petitioner appointed as municipal commissioner in travancore - legislative amendments removing provision imposing ceiling on salary of municipal commissioners passed - according to prevailing scales post of municipal commissioner travancore equated with that of commissioner of madras - respondents who had longer continuous service got seniority over petitioner - petitioner made representation against gradation list which was rejected - equation of posts should be effected on basis of functional responsibility - government assessed functional responsibility of several grades and on consideration as income and population of municipalities they were.....gopalan nambiyar, j.1. this writ petition has been ordered to be placed before a full bench as it raises an important question as to the nature of the power exercised by the central government in the matter of integration of services in the states. in m.a. jaleel v. state of mysore, air 1961 mys 210, a division bench of the mysore high court took the view that the power of the central government in the matter of integration of services was an exclusive original power. there were observations in a different strain made by one of us (raman nayar j.) in kunhi krishnan nambiyar v. state of kerala, 1964 ker lt 704 = air 1965 ker 84 (fb). in this latter case the mysore decision was not noticed, nor were the provisions of article 4 of the constitution. in view of all this our learned brother.....
Judgment:

Gopalan Nambiyar, J.

1. This writ petition has been ordered to be placed before a Full Bench as it raises an important question as to the nature of the power exercised by the Central Government in the matter of integration of services in the States. In M.A. Jaleel v. State of Mysore, AIR 1961 Mys 210, a Division Bench of the Mysore High Court took the view that the power of the Central Government in the matter of integration of services was an exclusive original power. There were observations in a different strain made by one of us (Raman Nayar J.) in Kunhi Krishnan Nambiyar v. State of Kerala, 1964 Ker LT 704 = AIR 1965 Ker 84 (FB). In this latter case the Mysore decision was not noticed, nor were the provisions of Article 4 of the Constitution. In view of all this our learned brother Mathew J. felt that the question should be decided by a Full Bench.

2. The petitioner was appointed Municipal Commissioner in the Travancore State in the year 1945 for a term of three years, renewed in 1948, and again in 1951, for a further term of three years on each occasion. By the time of the last renewal the Travancore-Cochin State had been formed by the integration of the States of Travancore and Cochin. There were no rules governing the appointment of Municipal Commissioners in the Travancore-State. The Travancore-Cochin Government framed rules dated 8-6-1953 relating to the conditions of services of Municipal Commissioners. Rule 1 constituted a cadre of Municipal Commissioners consisting of 25 officers divided into five grades, the 1st Grade on a scale of pay of Rs. 350-20-450 and the IInd Grade on a scale of pay of Rs. 275-10-325. It is unnecessary to notice the scales of the remaining grades. Rule 2 provided that ordinarily a first Grade Officer should be posted as Commissioner of the Corporation of Trivandrum and Officers on higher scales of pay as Commissioners of Municipalities having larger revenue receipts.

Rule 3 provided that the Municipal Commissioners shall be in service of the Government, shall belong to a separate cadre, and shall not be ordinarily entitled to transfer or to inter-changeability with other services under the Government. Rule 5 provided for making appointments by direct recruitment and by promotion or transfer of persons already in Municipal Service, and further provided that the then Municipal Commissioners (like the petitioner) recruited to the cadre otherwise from Government service, may be treated to be substantive in their respective posts from the dates of their appointments as such. According to Rule 4 appointment to the cadre of Municipal Commissioners shall ordinarily be in the last grade, promotion to the higher posts being made from the next lower grade on considerations of past records and not merely on seniority. The petitioner was selected for appointment to the 1st Grade on 25-4-1956 and posted as Commissioner of the Corporation of Trivandrum, for a period of one year. The Trivandrum City Municipal Act specifies the post of the Municipal Commissioner of the Corporation of Trivandrum as ft tenure post. The salary scale of the 1st Grade Municipal Commissioners in the Travancore-Cochin area was revised on 23-11-1956 (after the reorganisation of States) with effect from 1-4-1955 fixing the salary scale of 1st Grade Commissioner as Rs. 450-600.

The necessary legislative amendments to the Trivandrum. City Municipal Act and the District Municipalities Act, removing the provision imposing a ceiling on the salary of Municipal Commissioners were passed only on 30-10-1956 and the revised scale was implemented from 23-11-1956, though with effect from 1-4-1955. The petitioner was confirmed in the post of Commissioner. Corporation of Trivandrum with effect from 25-4-1956 by Ext. P8 order dated 12-8-1960. Ext. P9 G. O. No. 1837/LA, dated 27-12-1955 of the Government of Madras will show the constitution of two separate services for Municipal Commissioners, viz., the Madras Municipal Commissioners' Service, and the Municipal Commissioners' Subordinate Service. The former was to consist of one special grade post at Madurai on Rs. 800-50-900, three selection grade posts at Salem, Coimbatore and Thiruchirapalli, fifteen 1st Grade posts on Rs. 300-25-500, and eighteen second grade posts on Rs. 200-10-300. The latter service was to consist of 24 IIIrd Grade Commissioners on Rs. 150-5-200.

3. The reorganisation of States took place, on 1-11-1956 and certain Madras personnel (among them Respondents 3 and 4) were allotted and stood transferred to the Kerala State. By Ext. P3 G. O. dated 30-10-1957, the cadre strength of Municipal Commissioners in the Kerala State as on 1-11-1956 was fixed at 27, of which one was to be in the 1st grade on Rs. 400-600. This was revised by Ex. P3 G. O., dated 22-4-1958, by which, while maintaining the carde strength at 27, one selection post on Rs. 450-600 and eight 1st grade posts on Rs. 300-500 were sanctioned as on 1-11-1956. Ext. P1 dated 18-4-1958 is a copy of the integration order of the Government of Kerala equating the posts of Municipal Commissioners, in the Tra-vancore-Cochin area with the posts in Madras. Municipal Commissioners on Rs. 300-500 in Travancore-Cochin were equated with Municipal Commissioners on the same scale in Madras.

According to the then prevailing scales of pay this meant that the IInd Grade Commissioners of Travancore-Cochin were equated with the 1st Grade Commissioners of Madras, with the result that the petitioner as the only 1st Grade Commissioner of Travancore-Cochin, stood outside the equation and above his compeer in Madras. Respondents 3 and 4 and other allottees from Madras filed 'appeal petitions' against Ext. P 1 G. O. These were considered by the Advisory committee constituted by the Government of India under Section 115 of the States Reorganisation Act, and the Government of India passed final orders directing that the posts of Municipal Commissioners of Travancore-Cochin and Madras in the various grades, should be equated as below:

Travancore-Cochin

Madras

1st Grade

Rs. 350-450.

1st Grade

Rs. 300-500.

IInd Grade

Rs. 275-325.

IInd Grade

Rs. 200-300.

IIIrd Grade

Rs. 225-275.

IIIrd Grade

Rs. 150-200.

IVth Grade

Rs. 175-275.

Vth Grade

Rs. 150-175.

(Vide Ext. P 4.)

This meant that the post of 1st Grade Municipal Commissioner, Travancore-Cochin held by the petitioner on the relevant date was equated with that of the 1st Grade Municipal Commissioner Madras, held by Respondents 3 and 4, and since seniority was to be determined by length of continuous service in the equated posts, Respondents 3 and 4 who had longer continuous service got seniority over the petitioner. Accordingly a preliminary gradation list, (Ext. P5), was prepared and published in the Kerala Gazette dated 17th April 1962, showing 3rd and 4th respondents as seniors to the petitioner. This writ petition proceeds on the footing that petitioner was, at the time of Ext. P5, in England on deputation for training and that after his return, he filed Ext. P6 representation against the list which was rejected--as he was informed by Ext. P7 memo.

It is on this basis namely, that the favourable equation made by the State Government was upset to his prejudice, without giving him an opportunity of being heard, and that his representation Ext. P6, was not considered on the merits, that the petitioner has sought to quash Ext. P4 order and Ext. P5 list. But it was pointed out--though at a somewhat late stage of the arguments--that Ext. P4 order was published in the Kerala Gazette dated 15-12-1959, and objections invited, that the petitioner filed a representation dated 8-2-1960, against Ext. P4 order which was rejected after due consideration of the points raised, by the Central Government's order dated 8-7-1960, communicated to the petitioner by memo dated 25-11-1960. These were read out from the files by the Government Pleader. (See also paras 22, 29 and 30 of the 2nd respondent's counter affidavit). It is apparent that the petitioner has not made a full and true disclosure of the facts but has, in order to put forward his case of a violation of the principles of natural justice chosen to suppress his representation against Ext. P4 and the adverse order thereon. On that one ground alone this writ petition is liable to be dismissed.

4. We may also notice the cases stated in the counter-affidavit of the State that the petitioner's confirmation itself by Ext. P8 order as Commissioner, Corporation of Trivandrum, a tenure post, was not quite in order, and the question of clarifying the intention of Ext. P8 G. O. was engaging the attention of the Government, the same having been delayed only by reason of the petitioner's representations to the Government of India against Exts. P4 and P5 and the pendency of this writ petition (vide paragraphs 32 to 34 of 2nd Respondent's counter-affidavit). Whatever that be, as the matter has now been placed before a Full Bench, we shall proceed to consider all the points raised. The petitioner's counsel contended that the power of integration of services is one exclusively in the State Government and that any interference with that power by the Central Government whether by issuance of directions or otherwise, would be unconstitutional. Secondly it was contended that assuming the Central Government had any power in the matter, there was violation of the rules of natural justice in exercising the same.

5. Entry 41 of List II of Schedule VII of the Constitution vests the power of legislation in regard to the State Public Service in the States. By Article 245(1) the power of the legislature of a State to make laws for the whole or any part of the State as 'subject to the provisions of the Constitution'. Article 246(3) confers exclusive power in the legislature of a State to make laws with respect to the matters in List II of the VIIth Schedule, subject to Clauses (1) and (2) of the Article. (Clause (1) confers such exclusive power on Parliament in respect of matters in List I, and Clause (2) confers such power on Parliament, and, subject to Clause (1), on the State Legislature with respect to matters in List III). Article 162 and Article 73 of the Constitution which define the executive power of the State and the Union respectively, may be read:

Article 162: 'Subject to the provisions of the Constitution, the executive power of a State shall extend to the matters, with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or Authorities thereof'. Article 73: '(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend --

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in Sub-clause (a)shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State specified in Fart A or Part B of the First Schedule to matters with respect to which the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or Officer or authority thereof could exercise immediately before the commencement of this Constitution'.

6. We may next refer to Articles 2, 3 and 4 of the Constitution. Article 2 provides for the Parliament by law admitting into the Union, or establishing new States; and Article 3 to the Parliament by law forming a new State, whether by separation of territory from any State or by Union of two or more States, or otherwise. Article 4 reads:

'Article 4: -- '(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368'.

A conspectus of the above Articles leaves us in no doubt about the supremacy of Parliament's powers. Article 245 deals with the territorial jurisdiction of the State Legislature and of Parliament and Article 246 deals with the subject-matter of Legislation. The absence in Article 246(3), of the words 'subject to the provisions of the Constitution', which occur in Article 245(1), appears to us to be of no consequence and does not detract from the supremacy of Parliament's power of Legislation under Article 4. For, the very power to legislate being expressly subject to the provisions of the Constitution, the exclusive power to legislate in respect of the matters in List II must necessarily be so subject; in other words, it is subject to the powers conferred on Parliament by Article 4. The executive power by reason of Articles 73 and 162 is coterminous with the legislative power, and the proviso to Article 162 brings out again, the supremacy of the executive power of the Union. Article 256 which enables the Union to give directions to the State to ensure compliance with laws made by Parliament, further emphasises this aspect Article 4 enjoins that any law made under Article 2 or 3 shall contain provisions for amendment of the 1st and IVth Schedule of the Constitution, and further enables such 'supplemental, incidental and consequential provisions' as Parliament may deem necessary.

We are unable to read any limitation, as Counsel for the petitioner would have us read, that these latter provisions themselves cannot have the effect of amending the Constitution. The 'incidental, supplemental and consequential' provisions are such in relation to the law made under Article 3 (or Article 2 as the case may be) and not in relation to the amendment of Schedules I and IV which are inevitable in such law. Indeed, such a limited construction of Article 4 seems to have been rejected by the Supreme Court in Mangal Singh v. Union of India, AIR 1967 SC 044. Even assuming that these supplemental etc., provisions cannot amend the Constitution, but do have that effect, we have the categoric deeming provision in Clause 2 of Article 4 which should be an effective answer to the contention of Counsel for the petitioner.

7. The States Reorganisation Act. 1956 was passed in pursuance of Articles 3 and 4 of the Constitution. We may notice the provisions of Section 115 of the said Act:

'115 (i)-- Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative control of Lieutenant-Governor or Chief Commissioner in any of the existing States of Ajmer, Bhopal. Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State,

(2) Every person who immediately before the appointed day is serving in connection with the affairs of an existing State part of whose territories is transferred to another State by the provisions of Part II shall, as from that day, provisionally continue to serve in connection with the affairs of the principal successor State to that existing State, unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State.

(3) As soon as may be after the appointed day, the Central Government shall by general or special order determine the successor State to which every person referred to in Sub-section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.

(4) Every person who is finally allotted under the provisions of Sub-section (3) to a Successor State shall, if he is not already serving therein be made available for serving in that Successor State from such date as may be agreed upon between the Governments concerned, and in default of such agreement, as may be determined by the Central Government

(5) 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 this section and the proper consideration of any representations made a such persons.

(6) The foregoing provisions of this section shall not apply in relation to any person to whom the provisions of Section 114 apply.

(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in Sub-section (1) or Sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.'

8. In regard to the above section, judicial opinion is conflicting as to whether the, power of integration is an exclusive original power of the Central Government or a Supervisory power. In AIR 1961 Mys 210 the Mysore High Court took the view that the power of the Central Government in the matter of integration of services was an exclusive original power. In P. K. Roy v. State of Madhya Pradesh, AIR 1964 Madh Pra 307, a Division Bench of the Madhya Pradesh High Court while holding that the task of division and Integration was the special responsibility of the Central Government, ruled that the formulation of principles of integration and the preparation of provisional lists cannot be regarded as capable of being validly delegated by the Central Government. While leaving open the question as to the nature of the power, this latter part of the decision was reversed on appeal by the Supreme Court (vide Union of India v. P. K. Roy, AIR 1968 SC 850). It was ruled that there was no delegation by the Central Government of any of its essential functions as the ultimate responsibility was retained by the Central Government.

In A. J. Patel v. State of Guiarat, AIR 1965 Guj 23, a Full Bench of the Gujarat High Court took the view that the Central Government does not have the exclusive authority and the power in the matter of integration of services but that it does possess certain essential powers of a supervisory nature, and that the power of the State Government under Entry 41 of List II is not completely taken away. Dr. N. Desaiah v. Government of Andhra Pradesh, AIR 1968 Andhra Pradesh 5, was more concerned with the violation of the principles of natural justice and the opportunity to be afforded in the matter of bearing representations, regarding integration of services. These were the decisions brought to our notice,

9. In the face of Articles 4, 73 and 162 of the Constitution and Section 115 of the States Re-organisation Act (read with Article 256 of the Constitution), we have no hesitation in rejecting the extreme contention advanced on behalf of the petitioner's counsel that the power of integration belongs exclusively to the States. It is not without significance that such an extreme contention was not advanced before the Supreme Court in AIR 1968 SC 850. Entry 41 of List II stands subordinated to the other provisions referred to supra, and cannot avail to give the State, the exclusive power claimed for it by the petitioner. Nor does Article 309 give it such power. This provision again, is 'subject to the provisions of the Constitution', and therefore to Article 4. The power given by this article to promulgate rules -- even retrospectively -- regulating the recruitment and conditions of service of members of the State services must be subject to Section 115(7) of the States Reorganisation Act (read with Article 256 of the Constitution) which recognises the power of the Central Government to determine such conditions as on 31-10-1956 and further guarantees that such conditions shall not be prejudicially varied except with the previous approval of the Central Government.

We are not unaware of the somewhat shifting positions taken up by the Government of India in the reported cases brought to our notice. In AIR 1965 Guj 23 the learned Attorney-General contended that the Central Government had been constituted the sole and exclusive authority to integrate the services. The correspondence and the instructions of the Central Government referred to in that case indicate that the Central Government itself had not pitched its tent so high, prior to the Mysore decision in Jaleel's case, AIR 1961 Mys 210. In AIR 1968 SC 850, the Solicitor-General did not claim exclusive powers for the Government of India, but only that the powers of the State Government under Entry 41 of List II remain unaffected except to the extent of the obligation to carry out the directions of the Central Government issued under Section 115 of the States Reorganisation Act. Before us the stand taken by the Government Pleader appearing for the State and by the Central Government Pleader was that the power belonged exclusively to the Central Government.

Holding as we do, that the power of integration does not belong exclusively to the States, the question whether it is an exclusive original power on the part of the Central Government, or only one of supervision and control (with the right of issuing directions) over the States, whose power under Entry 41 of List II is not completely taken away, is quite academic, as, even if it be the former, it can still be exercised through a delegate, so long as the ultimate responsibility and control are retained by the Central Government. Having heard full arguments we may however indicate our view. We feel that the State Government's power under Entry 41 of List II read with Article 162 of the Constitution is not completely taken away, but is certainly subordinated to the Central Government's power under Article 4 read with Article 73 of the Constitution and Section 115 of the States Reorganisation Act. It was argued that the Central Government's power is only to effect the 'division and integration' of services 'among the new States'.

This power conferred under Clause (a) of Section 115(5), is not for the purpose of division and integration, but for assisting the Central Government 'in regard to' the division and integration. The expression 'in regard to' integration is wide enough to cover even preliminary, steps prior to actual integration, such as formulation of principles, equation of posts and things of the kind. The word integration itself, in its dictionary sense has the wide meaning of combining parts into a whole. That it means much more than mere 'allotment' is connoted by its use in conjunction with the word 'division' in Clause (a) of Section 115(5). In P. K. Roy's case, AIR 1968 SC 850, the Supreme Court observed:

'Generally speaking, the work of integration requires the formulation of principles on which the work has to be carried out, the actual preparation of preliminary gradation lists in accordance with the principles so settled, the publication of the lists together with the principles upon which they have been compiled, the invitation of representations by the persons affected thereby, the consideration of representations, and the publication of the final gradation list incorporating the decisions of the Central Government on the representations submitted'. Such was also the view taken in AIR 1965 Guj 23 at p. 38. We are in agreement with the learned Chief Justice in that case that the inappositeness -- if such it be -- of the preposition 'among' used in relation to 'integration' in Section 115(5)(a), cannot limit the content of the latter expression so as to cover only allotment. We feel that Clause (b) of Section 115(5) which speaks of the ensuring of fair and equitable treatment to persons affected by the section is a further pointer to the wide connotation of the term 'integration' in the context. We are not prepared to confine the fair and equitable treatment ensured by Clause (b) only to the matter of allotment of personnel referred to in Clauses (3) and (4) of Section 115. Clause (a) of Section 115 defines the occasion for the exercise of the Central Government's responsibility, and Clause (b) defines the manner of its exercise. For these reasons, we are inclined to think that the Central Government has certain controlling, supervisory, concurrent and overriding powers in regard to integration, which do not wipe out the State Government's powers under Entry 41 of List II and that these latter powers have to be exercised in subordination to those of the Central Government.

10. We may now notice the decision in Kunhikrishnan Nambiyar's Case, 1964 Ker LT 704 = AIR 1965 Ker 84 (FB). One of us Raman Nayar J, observed:

'36. -- In the first place I think it necessary to emphasise that Part X of the States Reorganisation Act charges the Central Government with the duty of sitting in judgment over the State Government in matters like the present. The Central Government's powers in this regard are both appellate and revisional -- in theory they are even wider since the Central Government can give directions beforehand and need not wait for the State Government to err, though in practice it would appear there has been no occasion for such an exercise. Under Section 117 of the Act, it is for the Central Government to make the final allotment of persons serving in an existing State for service in a successor State, to see to the division and integration of the services among the new States (of which Kerala is one) and the States of Andhra Pradesh and Madras, to ensure fair and equitable treatment to all persons whose services have been transferred from one State to another, and to consider any representations made by such persons. Such representations, when directed against decisions of the State Governments are really appeals and indeed have been rightly called so, and, on such appeals or otherwise, the Central Government can, under Section 117, give directions to the State Governments which the latter are bound to obey. Therefore anything that the Central Government ask the State Governments to do in relation to the division and integration of the service is really a statutory direction and, when it has the effect of altering a decision of the State Government to the disadvantage of any person, especially when it is in consequence of an appeal, it is a quasi-judicial decision. That being so, persons adversely affected have a right to be heard before a final decision is taken; they have a right to know what that decision is; and the decision itself must, apart from being supported by reasons, give clear directions (not presenting the State Governments with choices attracting further representations against the choice made), and must be attended with a certain degree of formality (not Informal or secret).'

11. The nature of the power of integration did not pointedly arise for consideration in the above case, and the observations quoted supra, were only obiter as far as the question now considered by us is concerned. They were made in the context of emphasising that any alteration of a decision of the State Government to the disadvantages of a member of the service, especially when made in appeal, is quasi-judicial, and an opportunity to be heard must be afforded before the decision is rendered.

12. The petitioner's counsel challenged Ext. P4, decision as being vitiated by misconception as to the number of grades of Municipal Commissioners in Madras and Travancore-Cochin, and as affording no reasons. Apart from the petitioner having precluded himself on the ground of delay and laches to quash Ext. P-4, we find no substance on the merits, in the petitioner's complaint. The petitioner's representation dated 8-2-1960 against Ext. P-4 met with an adverse order communicated to him by memo dated 25-11-1960, and this writ petition has been filed only in 1965. The counter-affidavit of the Central Government has extracted in paragraph 6, the reasons for the equation of posts, namely, that the actual pay scales, duties, responsibilities etc. of Municipal Councillors of Madras and Travancore-Cochin as on 31-10-1956 were reflected in the income ranges of the Municipalities in which they functioned, and that for the purpose of equation the revised pay-scales promulgated by the Kerala Government on 23-11-1956, after the States Reorganisation, in the erstwhile Travancore-Cochin area, cannot be taken into account.

The basis of the equation made by the Central Government was, after all, in accordance with Rule 2 of the Travancore-Cochin Rules 1953, the substance of which we have set out earlier, and according to which, also, the revenue receipts of the Municipalities determined the grades of the Commissioners posted to them. We find no warrant to interfere with the Government of India's decision in this respect. Nor do we find any misconception as to the number of Grades of Municipal Commissioners prevailing in the two areas, which are relevant to the question. Ext. P5 list is only consequential on Ext. P4, and Ext. P4 being outside the pale of attack, the challenge to Ext. P5 list must also fail. We would only like to record that the representations made by the petitioner seems to echo some of the departmental notings made on them in the Secretariat, which were read out to us by the Central Government Pleader. In the face of this, the petitioner's efforts to make out in his petition, that at the time of Ext. P5 list he was in England on deputation and apparently knew nothing, seems to us to come with ill grace, not to say anything more.

13. Regarding the second ground of the petitioner's argument, we need not consider the abstract question whether the function of integration is administrative or quasi-judicial. Section 115(5) of the States Reorganisation Act itself statutorily provides the need to consider representations made by the persons affected and sufficiently enshrines the rules of natural justice. These have been more than amply satisfied in the present case. The petitioner had two opportunities of making his representations, one against the equation of posts evidenced by Ext. P4, and the other against the list evidenced by Ext. P5. These were duly considered and rejected. There was no infringement of the principles of natural justice.

14. We dismiss this writ petition with costs.

Raman Nayar, J.

15. I concur with my learned brethren (whose judgment I have read and with which I am in agreement) in dismissing this petition with costs. But certain observations I made in 1964 Ker LT 704 = AIR 1965 Ker 84, -- they have been quoted by my learned brethren -- are charged with having brought this case before a Full Bench; and that is my principal excuse for saying a few words of my own.

16. In that case, namely, 1964 Ker LT 704 = AIR 1965 Ker 84, it was assumed on all hands that, having regard to Entry 41 of the State List read with Articles 245, 246 and 162 of the Constitution and to Article 309, the power to integrate the service personnel allotted to a State from other States under the provisions of the States Reorganisation Act so as to constitute the unified services of the State resided in the State subject to the control vested in the Central Government by Section 115 of the Act. The vires of that section was not questioned; it was assumed that Parliament had the power to make such a law; no attempt was made, at any rate not overtly, to trace the source of that power in the face of the constitutional provisions just referred to; and no reference was made to Article 4 of the Constitution. Now, after having heard arguments at great length and considered Section 115 of the States Reorganisation Act and the relevant constitutional provisions in the light of the decided cases, I find myself, albeit quite fortuitously, in the happy position of not having to recall a word of what I said.

17. Two years later, W. A. Nos. 136 and 149 of 1965 (Ker) two of us had occasion to consider the scope of Section 115 of the States Reorganisation Act in the light of the relevant constitutional provisions and to trace the source of its authority to Article 4. This is what we then said:

'Articles 246 and 162 of the Constitution read with Entry 41 of the State List give the State full legislative and executive powers in respect of its public services. ***** And subject to any law on the matter, the executive power extends to everything concerned with the public services. *****

Ordinarily, everything relating to the public services of a State would be within the exclusive competence, legislative and executive, of the State. But Part X of the States Reorganisation Act is a law made by Parliament in exercise of the powers conferred on it by Article 4 of the Constitution and entrenches on what is ordinarily within the exclusive competence of the States. That law contains provisions relating to the State Public Services which are supplemental, incidental and consequential to the provisions of the States Reorganisation Act, which is a law made under Article 3. The division of the services of the States then existing, the allotment of the members of these services as between the States as constituted by the Act, and the integration of the services of these States are all matters incidental and consequential to the provisions of the Act. Thus Section 115 of the Act makes provision for these matters with regard to services other than All India Services. With regard to certain States, Sub-section (1) of the section itself makes the allotment to the successor States while with regard to certain other States Sub-sections (2) to (4) empower the Central Government to make provisional as well as final allotments, although admission of members to the State public services is ordinarily a matter entirely for the State concerned. Sub-section (5) by necessary implication charges the Central Government with the responsibility of effecting the division and integration of the services among the new States (of which Kerala is one) and the States of Andhra Pradesh and Madras and with the ensuring of fair and equitable treatment to all persons affected by the provisions of the section (in other words persons allotted from one State to another, whether a new or an existing State) and the proper consideration of any representations made by such persons. Provision could well have been made, having regard to Article 4 of the Constitution, for these persons being made the special responsibility of the Centre for the rest of their service, but that would have been not merely impracticable but was probably regarded as an unnecessary and unwarranted interference with the rights of the States in respect of their public services. Therefore, by Sub-section (7), the States were left free to exercise their powers under Chapter I of Part XIV of the Constitution after the appointed day, namely, the 1st November 1956, so as to determine the conditions of service of members of their public services, so long as the conditions of service applicable immediately before the appointed day to any person referred to in Sub-section (1) or (2) were not varied to his disadvantage except with the previous approval of the Central Government. This is the protection afforded by the proviso'.

All that I would add with reference to Sub-section (5) of Section 115 is that, while under Sub-sections (2) and (3) of the Section the division of the services between the several States mentioned in Sub-section (5) is to be done by the Central Government itself, so far as the integration of the services is concerned, the implication of Sub-section (5) does not necessarily extend to this also having to be done by the Central Government itself. What Sub-section (5) says is that the Central Government may establish one or more advisory committees for 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 this section and the proper consideration of any representations made by such persons'.

The obvious and necessary implication is that the Central Government must necessarily have something to do in regard to the division and integration of the services and the ensuring of fair and equitable treatment to the affected persons. But the phrase, 'in regard to' is of wide import and does not necessarily imply that these things must be done by the Central Government itself. It seems to me that all that is necessarily implied is that the Central Government must have the final voice in the matter and that it must ensure fair and equitable treatment to the affected persons.

18. While on the wording of Sub-section (5) and the use of the preposition, 'among' in Clause (a) thereof, I might observe that there can be little doubt that this clause should be read as if it said, 'the division of the services among, and the integration of the services within the new States and the States of Andhra Pradesh and Madras' and that the rather inept use of the preposition, 'among' to do service both with regard to the word, 'division' and the word, 'integration' cannot lend the least substance to the contention that the words, 'division' and, 'integration' are used only to indicate the two processes involved in the allotment which is to be made by the Central Government under sub-sections (2) and (3) of the section. The division of the services is effected by the allotment as between the several States; the two are but one process; and the word, 'integration' can only mean the fusion of the personnel allotted to one State from several States to form the unified services of that State. The allotment effects the division, and the integration is something to come after that. The mere allotment to one State of personnel from other States involves no integration.

19. The States Reorganisation Act is a law made under Articles 2 and 3 of the Constitution, and what Section 115 of the Act does is to make the necessary supplemental, incidental and consequential provisions in relation to the public services of the States affected thereby. The power to make such provision is expressly conferred on Parliament by Article 4. Article 245 which confers the law-making power on the States opens with the words, 'subject to the provisions of the Constitution'; and so does Article 309. It follows that the powers thus conferred on the States are subject to the provisions of Article 4 and therefore subject to the law-making power conferred on Parliament by Article 4. That Article 246 does not in terms contain the limitation, 'subject to the provisions of the Constitution' makes no difference, for, that Article is ancillary to Article 245 and must be read as part and parcel thereof.

While Article 245 confers legislative Dowers on Parliament and on the State Legislatures and determines what might be railed their territorial jurisdiction, Article 246 only specifies the matters in respect of which Parliament and the Legislatures of the States may exercise the power conferred by Article 245. In respect of some matters Parliament has exclusive power; in respect of some the State Legislatures have exclusive power; and in respect of some the two have concurrent powers. The very power to legislate being conferred by Article 245, it necessarily follows that the exercise of that power, whether in the exclusive or in the concurrent field, can only be subject to the limitation imposed by Article 245, namely, subject to the other provisions of the Constitution. In other words, the words, 'subject to the provisions of the Constitution' must be read into Article 246 as well.

20. The power under Articles 245 and 246 is thus subject to Article 4, in other words, subject to any law which Parliament may make under that Article in making a law under Article 2 or Article 3. And, in so far as such a law makes supplemental, incidental and consequential provisions in relation to matters in the State List, that is authorised by Article 4; Articles 73 and 162 are attracted; and it is as if those matters were in the concurrent list. The supplemental, incidental and consequential provisions regarding the public services of the States contained in Section 115 of the States Re-organisation Act are thus completely in accord with Articles 4, 245, 246 and 309 of the Constitution. No amendment to the Constitution is, in fact, involved and it seems to me that there is no occasion to call in aid Clause (2) of Article 4.

21. As I have already observed, so far as the integration of the services is concerned, the implication of Sub-section (5) of Section 115 of the States Reorganisation Act is only that the ultimate control and responsibility vest in the Central Government, and needless to say, must be so exercised as to ensure fair and equitable treatment to all the affected persons. How exactly this control is to be exercised and the responsibility discharged is left to the Central Government to decide. The Central Government may, if it thinks fit, do all the work itself But that, of course, would be impracticable. It may lay down the general principles and ask the State Government to make all the necessary investigations and hold the necessary inquiries but pass the final orders itself.

It may leave the State Government to effect the integration in exercise of the latter's own powers under the Constitution, giving the State Government such directions or advice as it may deem expedient, and set itself up as an appellate or revisional authority to hear and decide representations from persons affected by the orders of the State Government. Or it may adopt a combination of all these methods. But, when it exercises its power of control to set aside or modify orders made by the State Government, whether of its own motion or on representations made to it, it should observe the principles of natural justice. It should not set aside or modify such orders to the detriment of any person without giving that person an opportunity of being heard. This is all said in 1964 Ker LT 704 = AIR 1965 Ker 84.

22. Turning now to the case on hand, it is clear that the petitioner's grievance is against the order, Ext. P4, embodying the Central Government's decision that that post of Municipal Commissioner, Grade I, of Madras should be equated with that of Municipal Commissioner, Grade I, of Travancore-Cochin. This varied to his disadvantage, the order, Ext. P1, of the State Government which, in effect, integrated the Municipal Commissioner, Grade I, of Madras with the Municipal Commissioner, Grade II, of Travancore-Cochin, and, by implication, placed the Municipal Commissioner, Grade I, of Travancore-Cochin, the post held by the petitioner, above the Municipal Commissioner, Grade I, of Madras. Ext P5 only implemented Ext. P4 just as a final decree implements a preliminary decree, and the petitioner has no case that the implementation was wrongly effected. It is no doubt the final result as set out in the final decree, Ext. P5, that actually affects the petitioner's career. But he can succeed only if he can successfully assail the preliminary decree, Ext. P4.

23. Now, the decision of the Central Government embodied in Ext. P4 was really only in the nature of a provisional decision. In accordance with the general directions given by the Central Government it was duly published in the Kerala Gazette of the 15th December 1959 for the information of the affected persons, and objections and representations were invited. The petitioner did, in fact, make the representation, Ext. R6, dated 8-2-1960, setting out his case in full and praying that the equation made by Ext. P1 be restored. This representation was forwarded to the Central Government which, after considering the matter, passed' the order, Ex. R7 dated 16-8-1960, rejecting the representation and pointing out that the equation made in Ext. P4 was in accord with the principles of integration laid down by the State Government by its order dated 29th December, 1956. (This order is generally known as the Integration G. O., and a copy of it has been marked as Ext. R2). This rejection was duly communicated to the petitioner by Ext. R8, dated 25-11-1960, and it was on the 15th March 1965, more than five years later, that the petitioner came to this Court under Article 226 of the Constitution complaining against Ext. P4 on the ground that it was made in violation of the principles of natural justice and saying nothing about the representation Ext. R6 he had made against it and the rejection of that representation by the Central Government after due consideration by its order, Ext. R7 dated 16-8-1960.

The pretence in the petition is that it was the publication of the provisional gradation list, Ext. P5 dated 23-3-1962, prepared in pursuance of Ext. P4, in the Gazette of the 17th April 1962 that for the first time gave the petitioner an opportunity of making a representation, that the first representation he made was Ext. P6 dated 20-12-1962, and that it was the communication of the rejection of that representation by Ext. P7 dated 5-2-1965 (a single line, non-speaking communication which nevertheless rightly described the petitioner's representation as a renewed representation) that gave him a cause of action to move this Court. Actually, as we have seen, it was Ext. R7 dated 16-8-1960 which gave the petitioner a cause of action. That order which confirmed the equation provisionally made by Ext. P4 was made after due consideration of the petitioner's representation, Ext. R6, and in accordance with the principles of natural justice.

24. The well-settled principles of integration embodied in Ex. R2 dated 29-12-1956, principles laid down by the State Government on the advice of the Central Government based on the conclusions reached at a conference of the Chief Secretaries of the several States held in May 1956, require that the equation of posts should be effected on the basis of functional responsibility. The affidavit filed on behalf of the Central Government discloses that it assessed the functional responsibility of the several grades of the Municipal Commissioners of Madras and Travancore-Cochin on such relevant considerations as the income and population of the Municipalities they were designed to serve and ordinarily served--not necessarily of the particular Municipality that they were for the time being serving, since exigencies might require the posting of a higher grade Commissioner to a lower grade Municipality or vice versa--considerations recognised by the very rules under which the service to which the petitioner was appointed was constituted.


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