1. This is an appeal against the judgment of Rajagopalan J. in W.P. No 36 of 1957, filed by the appellant in the following circumstances, The appellant was appointed in 1941 as a lower division clerk in the office of the Hindu Religious Endowments Board at Madras. In July 1944 he was transferred and posted as lower division inspector In the office of the Assistant Commissioner, Hindu Religious Endowments Board, Kozikode, South Malabar. In September 1951 when the Hindu Religious Endowments Board was abolished and in its stead the department of Hindu Religious and Charitable Endowments came into existence, he became a permanent lower division clerk acting as upper division clerk in the department. He then served in many posts till he was eventually posted as acting upper division inspector under the Assistant Commissioner, Palghat by an order dated 1st June 1956. On 16th August 1956 he was placed under suspension. Charges of misconduct were framed against him and the tribunal for disciplinary proceedings, Madras, conducted an enquiry into the charges. On 29th October 1956 he was served with an order of the Government of Madras, dated 13th October 1956, asking him to show cause why he should not be removed from service. On receipt of this, he requested the Government of Madras to permit him to go through the relevant papers to enable him to submit an explanation. This permission was refused and he was asked to submit his explanation expeditiously. On 2nd January 1957, relying upon the fact on 1st November 1956 the new State of Kerala was formed under the States Reorganisation Act, he presented a petition to the Government of Madras-submitting that it had no jurisdiction to take any action in his case and that the entire matter must be transferred to the Kerala for action by them. On 9th January 1957 he wad served with the order of the Madras Government dated 10th December 1956 informing him that he had not been allotted to the Kerala State and that he continued to be borne on the cadre of the Madras State. Apprehending that the Madras Government may take further action against him, he filed the writ petition out of which this appeal arises, for the issue of a writ of prohibition restraining the State of Madras from taking any further action. The writ petition was heard by Rajagopalan J. and dismissed in limine, without issue of notice to the State. Hence this appeal.
2. The appellant founded his petition on the provisions of the States Reorganisation Act and in particular on Section 116. As this section and Section 115 of the Act have a material bearing on the point in issue, we give below the material portion of these two sections:
Section 115(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.
S. 116(1): Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new part A State or Part C State shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new Part A State or Part C State in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post Or office by the Government of, or other appropriate authority, in such State, or by the Central Government or other appropriate authority in such part C State, as the case may be."
The contention of the appellant as set out in his affidavit filed in support of the writ petition is that by virtue of the provisions of Section 116(1) of the Act, he, who was holding the post of permanent lower division clerk in Malabar, automatically became a civil servant in the service of the Keraia State on 1st November 1958 and therefore the Government of Madras could not take any disciplinary proceedings against him. This contention was rejected by Rajagopalan J. on the following reasoning:
"I am unable to hold that the petitioner continued to hold the same post or office in Kerala State' on and after 1st November 1956. The Government categorically informed the petitioner that he had not been allotted to the Kerala State and it should be remembered that even in August 1956, the petitioner was placed under suspension by the Madras Government. He is still in the service of the Madras Government, and therefore the Madras Government have jurisdiction to deal with the question before them."
We agree with Rajagopalan J. that Section 116 has no application to the case of the appellant as it cannot be said that he was a person who immediately before the appointed day was holding or discharging the duties of any post or office in connection with the affairs of an existing State in any area which on that day fell within another existing State or a hew Part A state. He was placed under suspension, on 15th August 195S and the Assistant Commissioner, Palghat, was requested to relieve him at once. He was accordingly relieved of his office. So immediately before 1st November 1956 the appellant was not holding any post or office in the area which was eventually transferred to the new State of Kerala. A person under suspension on a particular day cannot be deemed on that day to have been appointed to any post or office. Mr. Kumaramangalam for the appellant relied on Fundamental Rule
13. But that relates, only to the retention of a lien on a substantive permanent post while under suspension. It does not imply that even while under suspension a Government servant is holding a post.
3. The real answer to the appellant's claim, however, is to be found in Section 115 (2) and (3). The appellant immediately before the appointed day was serving in connection with the affairs of an existing State, that is, Madras (vide definition in Section 2(g) part of whose territories was transferred to another State, namely, Kerala, by the provisions of Part II. Such a person, under Section 115(2), from that day, that is, from 1st November 1956, provisionally continues to serve in connection with the affairs of the principal successor State to that existing State which, according to the definition, would mean the State of Madras.
It is nobody's case that the appellant was required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State, in this case, Kerala. Admittedly the Central Government has not by general or special order made a final allotment of the appellant to the new State.
The result is that the appellant provisionally continued to serve in connection with the affairs of the State of Madras. It follows that it is only the State of Madras which could take disciplinary proceedings against him and could even dismiss him from service. The scope of Section 116 is quite different and obviously its provisions are temporary and transitional.
The object of Section 116(1) of the Act was to regularise what otherwise would have been an irregular state of affairs so far as public services were concerned. On the appointed day there would toe officers belonging to the Madras service holding office or discharging duties of posts and offices in the area which on that day would stand transferred to a new State, Kerala or Mysore.
Such officers would not cease to belong to the Madras Service. A question might arise as to their competency to act as officers in an area which was no longer part of Madras. It is to overcome this difficulty that the aid of a fiction is sought and such officers are deemed as from that day, that is, 1st November 1956, to have been duly appointed to their respective posts and officers by the Government of the New State.
The fact that they are deemed to have been appointed shows that they really have not been. The position appears to be clear to us that till the appellant is finally allotted to another state by an order of the Central Government under Section 115(3), the appellant continues to be in the service of the State of Madras. The continuavion of the proceedings against the appellant even after 1st November 1958 was therefore perfectly valid.
4. Mr. Mohan Kumaramangalam for the appellant next built up an argument on Section 125 of the Act which runs thus :
125 (1) : Every proceeding pending immediately before the appointed day before a Court (other than a High Court), tribunal, authority or officer in any area which on that day falls within a State shall, if it is a proceeding relating exclusively to any part of the territories which as from that day are the territories of another State, stand transferred To the corresponding Court tribunal authority or officer in the other State.
(2) If any question arises as to whether any proceeding should stand transferred under Sub-section (1), it shall be referred to the High Court having jurisdiction in respect of the area in which the Court, tribunal, authority, or officer before which or whom such proceeding is pending on the appointed day, is functioning and the decision of that High Court shall be filial.
He contended that the disciplinary proceedings were pending before the Government when the States Reorganisation Act came into force and the proceedings related exclusively to the part of the territories which were included in the territories of the new State of Kerala and, therefore, the proceedings stood transferred to the corresponding authority in the other State, that is the Kerala State. He also relied on Sub-section (2) to say that this Court would have jurisdiction to decide the question whether any proceeding should stand! transferred under Sub-section (1).
In our opinion, Section 125 can have no application whatever to the present case. There is no proceeding here which related exclusively to that Part of the old Madras State which was transferred to Kerala. It is doubtful if the Section was intended to apply to mere disciplinary proceedings by the State against its officers, so long of course as the officers continue to be in the service of that State. We do not think, therefore, that this is a case in which it can be held that the proceedings shall stand transferred to the Kerala State.
5. The appeal fails and is dismissed.