Judgment :- 1. The petitioner was a clerk in the Excise Department of the Travancore State. He is at present an officiating Assistant Sales Tax Officer in the service of the Government of Travancore-Cochin. The history of his service till the date of Ext. A (6.7.1954) is sketched as follows in Para.7 to 11 of the affidavit in support of the petition: 7. I was originally an employee in the Excise Department of the then Travancore State. While I was a clerk in that department in the scale of pay of Rs. 45-75 getting Rs. 65 as pay I was appointed as Assistant Sales Tax Officer of the Sales Tax Department of the Travancore State in the same scale of pay viz., 45-75 as per G.O. Roc. 3495/49 Devpt. dated 19th May 1949. I took charge on 18.10.1124, corresponding to 31.5.1949. 8. On 1.4.1950, I was promoted to the scale of pay of Rs. 80-100, in the same Department. 9. While I was acting in the above grade the Agrl. Income-tax and Sale-tax Department of the Travancore-Cochin State was brought into being. This was on 12.5.1950. 10. On 7.7.1951 1 was promoted to the scale of Rs. 100-125 in the same post in the same department. Subsequently I was promoted as Manager in the office of the Deputy Commissioner of the Agricultural Income-tax and Sales-tax at Trivandrum and this was in the scale of Rs. 125-150. 11. Thereafter, I was appointed as acting Sales-tax Officer in the scale of Rs. 125-175 and while I was acting as Sales-Tax Officer at Alwaye the order of integration of services in the Agricultural Income-Tax and Sales-Tax Department of the State viz., the above Ext. B was passed and my rank was fixed in the list Ext. A". 2. Ext. A is the list attached to Ext. B an order of the Government dated the 6th July 1954. In that list the petitioner is ranked as the 16th among the officiating Assistant Sales Tax Officers on the scale of Rs. 100-125. According to him he should be not the 16th but the 6th or in other words, respondents 2 to 11 should not have been ranked above him as has been done in Ext. A. 3. In that list the petitioner is ranked as the 16th among the officiating Assistant Sales Tax Officers on the scale of Rs. 100-125. According to him he should be not the 16th but the 6th or in other words, respondents 2 to 11 should not have been ranked above him as has been done in Ext. A. 3. The petitioner's contention that he should be the 6th in rank among the officiating Assistant Sales Tax Officers (and not the 16th) is based on the provisions of Ext. B. The full text of the said order is hereunder reproduced: "Government of Travancore-Cochin Proceedings Chief Secretariat-Integration Section Integration of Services-Agricultural Income-tax and Sales-tax Department. Read: (1) G.P. SR (1) 4611/49/RD dated 12.5.1950 (2) G.M.SR (2) 10591/51/RD dated 20.12.1952. Government have carefully considered the problems connected with the integration of the services personnel of the Agrl. Income-tax and Sales-tax Department and they are pleased to issue the following orders on the subject: Prior to the integration of the States there was a separate Sales-tax Department in Travancore. But in Cochin the Income-tax Department was attending to Sales-tax work also. There was no agricultural income-tax work as such in Cochin whereas in Travancore tax on Agrl. income was also being levied and the work was being attended to by the Income-tax Department of the State. After the integration of the States however, Agrl. Income-tax and Sales-tax were brought under one Department newly created as per G.P. SR 1-4611/49/RD dated 12.5.1950. The Agrl. Income-tax and Sales-tax Department thus came into existence only from 12.5.1950, when persons from several Departments in both branches of service including those from the former Sales-tax Department of Travancore, were drafted into it. Since the organisation of the Department on 12.5.1950, many changes have been effected from time to time by upgrading existing posts or sanctioning additional posts. Government have also issued orders making the Department permanent with effect from 1.4.1952. Integration and preparation of a combined gradation list. The question of preparing a combined civil and gradation list for the entire Department has been engaging the attention of Government for some time. After a careful consideration of all the aspects of the question Government are pleased to lay down the following general principles for the preparation of a combined Civil and Gradation list for the Department. 1. This Department will be treated as an entirely new Department created on 12.6.1950. After a careful consideration of all the aspects of the question Government are pleased to lay down the following general principles for the preparation of a combined Civil and Gradation list for the Department. 1. This Department will be treated as an entirely new Department created on 12.6.1950. 2. Seniority of persons drafted to this Department in the same grade from either branch of the services will be fixed with reference to the positions the incumbents held on 1.7.1949. 3. For determining the inter-se seniority persons belonging to either branch who have been appointed to the Department in the same grade, separate seniority lists for either branch will be prepared first on the following basis: (a) If persons belonging to the same or different departments in either branch were permanent in a grade, their relative seniority will be determined with reference to their dates of confirmation. (b) When such persons are officiating in a higher grade. (i) as regards Travancore, those with longer officiating service in the higher grade will be considered seniors to those whose officiating service in that grade is less, irrespective of their dates in the lower grade. (ii) as regards Cochin, officiating service in the higher grade will be ignored for determination of relative seniority, provided that in the case of persons who have been directly appointed or recruited to officiate in a grade, service in such grade will be counted for determining their relative seniority in that grade. 4. For fixing common seniority between Travancore and Cochin personnel in grade, length of service in the equated grade, whether permanent or officiating will be taken as the criterion. 5. The Sales-tax Department which existed in Travancore prior to 12.5.1950 will be treated as a component of the new Agrl. Income-tax Department formed on 12.5.1950. Prior service in the Sales-Tax Department will be treated in the same way as officiating service rendered in any other Department. 6. The Civil and gradation lists appended to these orders have been prepared in accordance with the general principles enunciated above. The lists represent the position of the officers of the integrated Department as on 1.4.1953. The lists have been approved by Government. 7. The following orders are also passed in respect of the Civil and gradation lists:-Assistant Commissioners : (a) Sri. G. Ramanathan: He was appointed I.A.S. probationer from 23.4.1953. The lists represent the position of the officers of the integrated Department as on 1.4.1953. The lists have been approved by Government. 7. The following orders are also passed in respect of the Civil and gradation lists:-Assistant Commissioners : (a) Sri. G. Ramanathan: He was appointed I.A.S. probationer from 23.4.1953. His permanent lien in the Agricultural Income-tax and Sales-tax Department has to be retained till the date of the confirmation in the I.A.S. cadre. His lien is therefore shown in the Civil list. (b) Sri P.K. Abdulla : He was permanent Assistant Secretary, Law Department, Cochin on Rs. 200-300. He was appointed as Assistant Commissioner of Agrl. Income-tax and Sales-tax on 225-275 from 27.5.1950 and allowed his permanent scale of pay of Rs. 200-300. He continued in the department till 14.11.1950, when he was appointed as acting Deputy Collector, Trivandrum. He has been on other duty since 14.11.1950. His lien in the Agrl. Income-tax and Sales-tax Department based on his first appointment as Assistant Commissioner is retained. (c) Sri. P.M. Mathew: He was selected as I.A.S. Probationer from 1.4.1952 and was confirmed in the I.A.S. cadre from 19.10.1953. Hence in the list as on 1.4.1953 he is assigned a pro forma rank among Assistant Commissioners. Sales-tax Officers and Agricultural Income-tax Officers on (175-225) (d) The first six officers as per the appended Civil list are direct recruits appointed in G.O. Roc. No. 1467/49/Devpt, dated 24.2.1949. The question of their relative seniority has been fully examined by Government. Government consider that no alteration is necessary in the ranks assigned to these officers in the Government order sanctioning their appointment. It is therefore ordered accordingly. Sales-tax Officers and Agrl. Income-tax & Sales-tax Officers on (125-175): (e) Sri. N. Prabhakaran: He was a permanent auditor in the Account office on other duty in the Food Department. As his lien in the Account Office was terminated from 1.4.1951 he was ordered to be given a permanent place in State service from that date. He was accordingly considered as a supernumerary from 1.4.1951 to 31.3.1952 attached to the Agricultural Income-tax and Sales-tax Department, to be permanently absorbed from 1.4.1952 in the scale of Rs. 125-175. (vide G.P. S2-31454/52/CS dated 18.11.1953). He is therefore assigned rank on the above basis from 1.4.1951 and confirmed from 1.4.1950. (f) Sri. T.S. Mrithinja Iyer: He was Kariakar Royal Stables on Rs. 125-175. (vide G.P. S2-31454/52/CS dated 18.11.1953). He is therefore assigned rank on the above basis from 1.4.1951 and confirmed from 1.4.1950. (f) Sri. T.S. Mrithinja Iyer: He was Kariakar Royal Stables on Rs. 100-150 rendered supernumerary by the abolition of the staff of the Royal Stables. He was ordered to be absorbed in the Agricultural Income-tax and Sales-tax Department on Rs. 125-175 (vide G.P.H. 7-7511/53/CS, dated 14.6.1953). As he joined the Department only subsequent to 1.4.1953, his name is not included in the present gradation list. (g) N.F. D'Souza: He was a permanent store-keeper in the State Guests Department. He was declared supernumerary on Rs. 100-125 in the State Guests Department. Sanction was accorded in G.P.D. Dis. 7978/53/RD, dated 13.4.1954 for his absorption in the Agricultural Income-tax and Sales-tax Department and to fix his rank as if he were holding a post on Rs. 125-175 on 12.5.1950. Revised orders were issued in the G.P. of even number dated 28.4.1954 to the effect that he be assigned rank in the grade of Rs. 125-175 only with effect from the date of his joining duty in the Department. He joined duty in the department only after 1.4.1953. His name is not therefore included in the present list. Posts on Rs. 100-125 and 80-100 (h) Under existing sanction there are 18 posts on Rs. 100-125 and 34 posts on Rs. 80-100. Of these two posts on Rs. 100-125 and 2 on Rs. 80-100 are attached to the office of the Board of Revenue. The department has shown these 4 posts under Rs. 80-120 in the Rs. 80-100 group, thereby reducing the number of posts on Rs. 100-125 to 16 and increasing those on Rs. 80-100 to 36. This conversion is not supported by any sanction. As such the number of posts under the two grades is shown in the gradation list as 18 and 34 respectively. Clerks on Rs. 45-75 (i) Sri. K. Kochunarayana Pillai: He was also a supernumerary from the Royal Stables. He was ordered to be absorbed as clerk on Rs. 45-75 in the Agrl. Income-tax and Sales-tax Department (vide G.P. SR. 6-12897/52/RD, dated 18-2-1953). He joined the Department on 2.3.1953 and has been absorbed permanently in one of the vacancies on Rs. 45-75 reserved for supernumeraries from 2.3.1953. 8. Departmental Tests: (i) Agricultural Income-tax and Sales-tax Test: This was introduced as per G.P.R. Dis. 2021/52/CS dated 21.1.1953. 45-75 in the Agrl. Income-tax and Sales-tax Department (vide G.P. SR. 6-12897/52/RD, dated 18-2-1953). He joined the Department on 2.3.1953 and has been absorbed permanently in one of the vacancies on Rs. 45-75 reserved for supernumeraries from 2.3.1953. 8. Departmental Tests: (i) Agricultural Income-tax and Sales-tax Test: This was introduced as per G.P.R. Dis. 2021/52/CS dated 21.1.1953. Clause.6 of the G.P. says that a period of two years for passing the test will be given to the existing staff from the date of introduction of the test. (ii) Account Test:- The is obligatory to the ministerial staff for promotion to the grades of Rs. 45-75 and above. In this Department the posts of clerks and Assistant Salestax Officers on Rs. 45-75 are inter-changeable. In G.P. SR. 2363/52/RD, dated 19.7.1952 it is laid down that Assistant Saletax Officers also should pass Account test. But they too are eligible for two years' time for passing the test according to G.P.R. Dis. 8207/51/CS, dated 7.5.1951. (iii) Secretariat Manual Test: This too is obligatory for clerks. 9. The general exemption contemplated under para 6 of G.P.R. Dis. 8207/51/CS dated 7.5.1951 has expired only on 25.6.1953. But as the lists appended represent the position as on 1.4.1953, i.e., within the period of general exemption, the confirmations and promotions in the various grades have been made in the strict order of seniority without reference to that qualification. In the case of persons who have not passed the Account Test or the Secretariat Manual Test, their promotions and confirmations as shown in the list will be purely provisional, and they will be reviewed by the Board of Revenue if any such person has not passed the required test before the expiry of the period of exemption. 10. Seventy copies of the approved Civil and Gradation lists are forwarded to the Secretary, Board of Revenue. One copy each will be supplied to every head of office for publication. Aggrieved persons if any will be directed to present appeal petition within a month of such publication. The Secretary, Board of Revenue will forward every such appeal petition to Government with the specific recommendation of the Board of Revenue in such case. 11. Government wish to make it clear that complaints against any of the accepted principles of integration as laid down in these orders will not be countenanced. 12. The Secretary, Board of Revenue will forward every such appeal petition to Government with the specific recommendation of the Board of Revenue in such case. 11. Government wish to make it clear that complaints against any of the accepted principles of integration as laid down in these orders will not be countenanced. 12. Arrears of pay which may fall due to any officer as a result of the implementation of these orders will not be paid for periods prior to 1.4.1953. In conformity with the above principle excess amounts duly drawn by any officer before 1.4.1953 will not also be recovered. By Order of His Highness The Rajpramukh Sd/- V.K. Velayudhan Officer on Special Duty, Integration". 4. The petitioner filed an appeal as provided in Para.10 of Ext. B, and Ext. D dated the 6th September 1955 is the order thereon: "The petitioner and the other persons referred to by him were appointed to the grade of Rs. 80-100 in the Agricultural Income Tax & Sales Tax Department at the time of its formation on 12.5.1950. All of them belonged to the Travancore Branch and were officiating in the grade of Rs. 45-75 on 1.7.1949. For determining the inter-se seniority of the Travancore personnel, permanent in a grade and officiating in a higher grade the integration G.P. dated 6.7.1954 lays down that those with longer officiating service in the higher grade will be considered seniors to those whose officiating service in that grade is less, irrespective of their dates of confirmation in the lower grade. This is, however, subject to the condition that the relative seniority of persons drafted from the same department to the same scale of pay in the new department will not be disturbed. The petitioner was appointed from the Excise Department and he was junior to Sri. Marthanda Pillai and other drafted from the Department to the Agrl. Incometax and Salestax Department. According to the principles of integration, Sri. Marthanda Pillai and others could get only lower ranks than Sri. V. Subramoniam in the branch list. The petitioner cannot therefrom claim seniority over Sri. Marthanda Pillai and others drafted from the Excise Department much less over their seniors in the branch list. Sri. P.J. Thomas was selected by the Public Service Commission for appointment as Gujarathi knowing Assistant Sales Tax Officer on Rs. 100-125 joined the appointment on 24.1.1952. V. Subramoniam in the branch list. The petitioner cannot therefrom claim seniority over Sri. Marthanda Pillai and others drafted from the Excise Department much less over their seniors in the branch list. Sri. P.J. Thomas was selected by the Public Service Commission for appointment as Gujarathi knowing Assistant Sales Tax Officer on Rs. 100-125 joined the appointment on 24.1.1952. His rank in the grade was fixed below all those who were eligible for promotion to the grade on or before 24.1.1952 on the basis of the integrated gradation list. The earlier promotion referred to by the petitioner from 14.7.1951 was a promotion effected on the basis of the provisional gradation list followed by the Department. According to the integrated list, the petitioner becomes eligible for promotion to the grade of Rs. 100-125 from 1.4.1952 only. He cannot therefore question the rank assigned to Sri. P.J. Thomas in the officiating list of persons on Rs. 100-125. The petition is recorded". According to the petitioner the sentence: "This is, however, subject to the condition that the relative seniority of persons drafted from the same department to the same scale of pay in the new department will not be disturbed". occurring in Para.1 of Ext. D is not supported by any of the provisions of Ext. B and imports a consideration which is extraneous to that order and which should not have been invoked at all. 5. The main question, therefore, that arises for determination is the scope, character and effect of Ext. B. According to the petitioner the contents of Ext. B constitute rules framed under the proviso to Art.309 of the Constitution and according to the learned Government Pleader they are nothing more than mere directions issued in exercise of the executive power of the State. If the petitioner's contention cannot be upheld and the learned Government Pleader is right in his submission there can be no doubt that even if the provisions of Ext. B have been violated as alleged such violation will not enable us to interfere under Art.226 of the Constitution. 6. If the petitioner's contention cannot be upheld and the learned Government Pleader is right in his submission there can be no doubt that even if the provisions of Ext. B have been violated as alleged such violation will not enable us to interfere under Art.226 of the Constitution. 6. Art.309 of the Constitution reads: "Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor or Rajpramukh of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this article, and any rules so made shall have effect subject to the provisions of any such act". The contentions of the State in relation to Art.309 can be summed up as follows: "(1) that the Article applies only to persons recruited and appointed subsequent to the Constitution and not to those like the petitioner who were in service on the date the Constitution came into force; (2) that what the Article empowers is the regulation of "recruitment" and "conditions of service" and Ext. B does not embody provisions in that behalf; and (3) that Ext. B was not a matter of fact made in exercise of the power conferred by the proviso to Art.309 and can on no account be considered as so made". 7. We propose to assume, without deciding, that Art.309 applies to a person like the petitioner whose services were continued after the Constitution came into force and that Ext. B does regulate the "conditions of service" of the persons to whom it was intended to apply. The third contention alone will hence be considered in the paragraphs that follow: 8. In Para.2 of the affidavit filed on behalf of the State it is clearly stated as follows: "The Government Proceedings marked Ext. B does regulate the "conditions of service" of the persons to whom it was intended to apply. The third contention alone will hence be considered in the paragraphs that follow: 8. In Para.2 of the affidavit filed on behalf of the State it is clearly stated as follows: "The Government Proceedings marked Ext. B do not "lay down rules for regulation of the conditions of services and posts". They are administrative orders of the Government for the preparation of a combined civil and gradation list of the Agricultural Income-tax and Sales-tax Department of the State. They have not the force of law, and they have no reference to Art.309 of the Constitution". A perusal of Ext. B - its form and its contents - also indicates that what was being done was not the framing of rules in exercise of a power like the one conferred by the proviso to Art.309 of the Constitution. 9. The form in which the Government issues rules whether under a statute or under the Constitution is entirely different. A set of rules framed under the proviso to Art.309 itself appears in the Travancore-Cochin Gazette dated the 9th August 1955. It opens as follows: "In exercise of the powers conferred by the proviso to Art.309 of the Constitution His Highness the Rajpramukh of Travancore-Cochin hereby makes the following rules, namely:-" R.1 of the said Rules provides: "These rules may be called the Travancore-Cochin Civil Services (Safeguarding of State and National Security) Rules, 1955". and R.2: "In these Rules, (a) "Government Servant" means any person in the service of the Government whether for the time being in foreign service or not, but shall not include members of the All India Services; (b) "Head of a Department" means any authority declared as such for the purpose of the Financial Code; and (c) "The competent Authority" means (i) in relation to a Government servant appointed by the Head of a Department or by an authority subordinate to the Head of a Department, the Head of the Department, and (ii) in relation to any other Government servant, High Highness the Rajpramukh. (d) "Government" means the Government of Travancore-Cochin". The same form has invariably been adopted in the framing of rules under other Articles as well, as for example in framing rules under Art.187(3) and 234 of the Constitution (Travancore-Cochin Statutory Rules and Notifications 1953, Volume II, pp. (d) "Government" means the Government of Travancore-Cochin". The same form has invariably been adopted in the framing of rules under other Articles as well, as for example in framing rules under Art.187(3) and 234 of the Constitution (Travancore-Cochin Statutory Rules and Notifications 1953, Volume II, pp. 929 and 1117). We are satisfied that Ext. B can in no sense be considered as embodying a set of rules framed under the proviso to Art.309 of the Constitution. It is not contended that Ext. B is traceable to any other constitutional or statutory power and it must follow that the learned Government Pleader is correct when he says that it embodies mere directions in the exercise of the executive power of the State, and a departure therefrom, even if established, will not attract our jurisdiction under Art.226 of the Constitution. 10. In AIR 1955 Supreme Court 549 the Chief Justice said: "It may not be possible to frame an exhaustive definition of what an executive function means and implies. Ordinarily the executive power connotes the residue of Governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another". 11. No question of discriminatory treatment has been present in this case. Apart from the contention that Ext. B embodies set of rules framed under the proviso to Art.309 and violation thereof can hence be corrected under Art.226, the only other contention urged is that in view of the provision for an appeal in Para.10 of Ext. B, we should consider the Government as functioning as a quasi judicial authority when it rejected the appeal by Ext. D and Ext. D as a speaking order amenable to review under Art.226 of the Constitution. We find it impossible to any either that a quasi judicial authority was set up or that the Government functioned in a quasi judicial capacity while dealing with appeals under Para.13. 12. D and Ext. D as a speaking order amenable to review under Art.226 of the Constitution. We find it impossible to any either that a quasi judicial authority was set up or that the Government functioned in a quasi judicial capacity while dealing with appeals under Para.13. 12. In the light of what is stated above the petition fails and is hereby dismissed, though in the circumstances of the case without any order as to costs.