State of Kerala v. John — 1972 DIGILAW 182 (KER)

JUDGMENT P. Govindan Nair, J. 1. These appeals arise from the judgment of Isaac, J., disposing of two petitions, O.P. No. 4786 of 1968 and O.P. No. 1114 of 1969 by two separate judgments, both dated 4th June, 1970. 2. The main question or perhaps the only question arising in Writ Appeal Nos. 147 and 149 of 1970 which are appeals taken by the State Government, the 1st respondent and the 5th respondent respectively in O.P. No. 4786 of 1968 is about the principles to be adopted in fixing the inter se seniority of the petitioner and respondents 3, 4, 5 and 6 in that petition. This question had been the subject-matter of several proceedings before this Court by the petitioner in O.P. No. 4786 of 1968 and by other persons and turns on the effect of sub-section (7) of section 115 of the States Reorganisation Act, 1956 with particular reference to the proviso to that sub-section. We shall read this sub-section and the proviso before we state the facts: "115 (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 subsection (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government." 3. Very briefly stated, the question is whether the conditions of service of the petitioner in O.P. No. 4786 of 1968 and of respondents 3 to 5 in that Original Petition should be as they were laid down in Ext. P-1 order passed by the Travancore-Cochin State on 24th October 1956 or must be as it was laid down in the order Ext. P-3 passed by the Kerala State on 10th August 1959. It may now be taken as accepted that the order Ext. P-3 dated 10th August 1959 was passed without the previous approval of the Central Government insisted upon by the proviso to subsection (7) of section 115 of the States Reorganisation Act, 1956. In fact, the matter is now concluded by the judgment of this Court in Writ Appeal Nos. It may now be taken as accepted that the order Ext. P-3 dated 10th August 1959 was passed without the previous approval of the Central Government insisted upon by the proviso to subsection (7) of section 115 of the States Reorganisation Act, 1956. In fact, the matter is now concluded by the judgment of this Court in Writ Appeal Nos. 136 and 149 of 1965 where a list drawn up by applying the principles laid down in Ext. P-3 dated 10th August 1959, namely, Ext. P-4 dated 30th January 1960, was set aside as Ext. P-3 lacked the previous approval of the Central Government. The relevant part of the judgment in Writ Appeal Nos. 136 and 149 of 1965 is in these terms: "We hold that Ext. P-4 is bad, in so far as it adversely affects the petitioners, for want of the previous approval of the Central Government as required by the proviso to sub-section (7) of section 115 of the States Reorganisation Act. Accordingly we quash it and direct that, except with the previous approval of the Central Government, the rank of the petitioners in any seniority list of the service shall not be determined in a manner less favourable to them than under the principles set out in Ext. P-2." 4. During the pendency of the appeals that were disposed of by the above judgment, the State Government proceeded to integrate the persons allotted to the Kerala State from the Travancore-Cochin State as also from the Madras State and an order Ext. R-1 produced by the 1st respondent dated 11th March 1966 was passed by the Government. On the basis of Ext. R-1, Ext. P-11 order was passed promoting the 3rd respondent as Chief Engineer. He was then on other duty and was allowed to continue there. The 4th respondent, the next senior according to Ext. R-1, was therefore promoted and appointed as Chief Engineer by the very same order Ext. P-11. The prayer in the petition, O.P. No. 4786 of 1968 is to set aside Ext. P-11 and for a declaration that respondents 3 to 5 are juniors to the petitioner. The petitioner in the Original Petition also obtained an order of injunction from this Court restraining the State Government from appointing persons to the post of Chief Engineer on the basis of Ext. R-1. P-11 and for a declaration that respondents 3 to 5 are juniors to the petitioner. The petitioner in the Original Petition also obtained an order of injunction from this Court restraining the State Government from appointing persons to the post of Chief Engineer on the basis of Ext. R-1. In the meantime the 3rd respondent retired and so did the 4th respondent. The Chief Engineer's post having thus fallen vacant, the State Government approached this Court by C.M.P. No. 3467 of 1970 and prayed for vacating the interim order of injunction or to give a direction permitting the appointment of the seniormost in Ext. R-1 list without prejudice to the contentions of the petitioner in the Original Petition and subject to the decision therein. This latter prayer was allowed by this Court. Accordingly the 5th respondent has been appointed after the order of this Court on the same Civil Miscellaneous Petition on 11th March 1970 and the 5th respondent is now functioning as Chief Engineer. 5. It may be mentioned here that the petitioner entered service in the former Cochin State and respondent 3 and 4, in the former Travancore service. The 5th respondent entered service in the Madras State. Ext. P-1 order dated 24th October 1956 passed by the Travancore-Cochin State laid down the principles for integrating the personnel in the former Travancore and Cochin States and that should govern the integration of the petitioner with respondents 3 and 4. As far as the 5th respondent is concerned his integration with the petitioner and respondents 3 and 4 will have to be governed by the order of the Central Government, the second respondent, dated 29th December 1956. There is no case that that order has not been properly implemented in determining the inter se seniority of the petitioner and respondents 3 and 4 on the one hand and the 5th respondent on the other. But in view of the application at one time of the principles laid down in Ext. P-1 and later on of the application of the principles laid down by the Kerala Government in the order Ext. P-3 dated 10th August 1959 there has been a change in the inter se seniority of the petitioner and respondents 3 and 4. Shortly stated, the petitioner was senior to respondents 3 and 4 by applying Ext. P-1 and later on of the application of the principles laid down by the Kerala Government in the order Ext. P-3 dated 10th August 1959 there has been a change in the inter se seniority of the petitioner and respondents 3 and 4. Shortly stated, the petitioner was senior to respondents 3 and 4 by applying Ext. P-1 whereas the petitioner had become junior to respondents 3 and 4 by applying Ext. P-3. 6. The learned Judge has given a direction that the inter se seniority of the petitioner and respondents 3 and 4 as on 1st November 1956 the date of the States Reorganisation, must be fixed on the basis of Ext. P-1 and that further integration for the purpose of the Kerala State must take place on that basis. It is this judgment that is challenged by the State Government in Writ Appeal No. 147 of 1970 as stated already and by the 5th respondent in Writ Appeal No. 149 of 1970. 7. The points urged before us are (1) that the judgment of this Court which set aside the list Ext. P-4 will not have the effect of reviving the order Ext. P-1 and that till fresh principles are laid down, there can be no question of settling the inter se seniority of the petitioner and respondents 3 and 4. The State Government also contended in answer to the petition that they are still in correspondence with the Central Government, the 2nd respondent, impressing on the second respondent the necessity to give approval of the principles embodied in the order Ext. P-3 so that a fresh order could be passed by the Kerala State embodying those principles. The second respondent on the other hand seems to have taken the view that they have no power or , authority to grant approval of the principles embodied in an order passed by the State Government as early as 24th October 1956 and that such approval would amount to the granting of retrospective approval of the principles settled by the State Government which according to the Central Government was not justified under the States Re-organisation Act under section 115(7) and the proviso thereto. Suffice it to say, for the purpose of this case, that till now there has been no order passed by the Central Government granting approval to the principles laid down in Ext. P-3. Suffice it to say, for the purpose of this case, that till now there has been no order passed by the Central Government granting approval to the principles laid down in Ext. P-3. Nay, there have been specific denials of such approval as evidenced by the order Ext. R-9 dated 12th June 1968, and very recently, by Ext. R-15, which has been produced by the State in Writ Appeal No. 147 of 1970 along with C.M.P. No. 9768 of 1972. In view of this attitude of the Central Government as evidenced by Exts. R-9 and R-15, a prayer has been made before us for permission to raise additional ground in the Writ Appeal challenging the view taken by the Central Government. We may mention here that the learned Judge in the judgment under appeal has made observations in the judgment which may suggest that this Court has approved of the stand taken by the Central Government. It was contended by the Advocate-General that we should deal with this aspect of the question in these appeals and give a pronouncement as to the capacity and jurisdiction of the Central Government in relation to the question of granting approval on the basis of the claim by the State Government. We do not think that this is a matter that arose in the Original Petition which was disposed of by the judgment under appeal and we further do not think that this is the appropriate proceeding for deciding the ambit or scope of the jurisdiction of the Central Government as the question was not specifically mooted in the Original Petition for any relief against the Central Government. Such being the position, it will be inappropriate to decide the question as to whether the Central Government was correct in refusing to grant the approval on the ground that the grant of the approval, would amount to granting of approval retrospectively which is not permissible under the proviso to section 115 (7) of the States Reorganisation Act, 1956. This we think, if it becomes necessary, will have to be agitated in appropriate mother proceedings initiated by either the State Government if such is permissible or by the persons who are adversely affected by the stand taken by the Central Government that such approval could not be granted. We will not therefore deal with this aspect in these appeals. This we think, if it becomes necessary, will have to be agitated in appropriate mother proceedings initiated by either the State Government if such is permissible or by the persons who are adversely affected by the stand taken by the Central Government that such approval could not be granted. We will not therefore deal with this aspect in these appeals. We therefore reject the petition for raising additional grounds in Writ Appeal No. 147 of 1970. We have adverted to the document Ext. R-15 produced along with C.M.P. No. 9768 of 1972. This document alone will be marked in Writ Appeal No. 147 of 1970 as an additional document. Subject to this, we reject C.M.P. No. 9768 of 1972. 8. Now we shall deal with the main point. The argument is when a rule is substituted by a new rule and the new rule is struck down or declared to be void the old rule will not survive and that this principle should be applied to this case. Therefore it is urged that the setting aside of the list Ext. P-4 can only have the effect of setting-aside of a new rule and this does not have the effect of reviving the principles embodied in Ext. P-1. We may state at the outset that Ext. P-4 is not a rule. Ext. P-4 is only a list. No doubt, this list was based on the order Ext. P-3 and it may be that the order Ext. P-3 contained the rules, rules being used in a general sense as embodying the conditions of service applicable to the parties. But this rule has not been set aside. What has been done by the judgment in Writ Appeal Nos. 136 and 147 of 1965 is only to point out the law as laid down in section 115 (7) of the States Reorganisation Act that the principles that were applicable to the employees of the States that were reorganised before such reorganisation ; must not be altered to their prejudice without the prior approval of the Central Government. Such a direction by this Court cannot be taken to be the striking down of any rule which may have substituted another rule. Such a direction by this Court cannot be taken to be the striking down of any rule which may have substituted another rule. The law, the proviso to section 115 (7) of the States Reorganisation Act, itself insisted that the principles that were applicable before the appointed day, 1st November 1956, should be applied unless the law had been changed with the prior approval. If there had been no prior approval of the change as required by the statutory provisions, the principles that governed the matter before the formation of, the Kerala State must necessarily apply. This we consider the States Reorganisation Act insists. This Court said that those principles should be applied and must be continued to be applied till those principles are altered in the manner provided by the statute. So the divergent principles that have to be applied in the case of substitution and supersession pointed out by the Supreme Court in the decision in Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. A.I.R. 1969 S.C. 504 will have no application. We are aware that Justice Mathew in a Writ Application filed by one T. Francis, O. P. No. 5202 of 1967 expressed the opinion that the effect of the judgment in Writ Appeal Nos. 136 and 149 is not to revive the principles stated in Ext. P-1 and that on the basis of this view in a later petition, O.P. No. 2132 of 1968 Justice Nambiyar also proceeded on the basis that this Court could not give a direction that the seniority should be settled on the basis of the principles laid down in Ext. P-1. With great respect, we are unable to agree with the view expressed in O. P. No. 5202 of 1967 because we consider that the effect of the statutory provision [proviso to section 115 (7)] of the States Reorganisation Act had not been adverted to in that decision. We understand the statute as insisting that the conditions of service that were applicable before the appointed day must not be altered to the prejudice of any person governed by the conditions of those service unless those conditions of service had been altered in the manner provided by the statute. We understand the statute as insisting that the conditions of service that were applicable before the appointed day must not be altered to the prejudice of any person governed by the conditions of those service unless those conditions of service had been altered in the manner provided by the statute. As long as there had been no such alteration, the positive element necessarily implied in the provision must govern the matter, namely, that the conditions of service that were obtaining before the appointed day, must be continued to be applied. In that light, the principles embodied in Ext. P-1 which admittedly contained the conditions of services applicable to respondents 3 and 4 and the petitioner must govern the settlement of their inter se seniority. In this view, we find no reason whatever to interfere with the directions given by Isaac, J., in the judgment under appeal. The matter has now been pending for a long time and the suggestion made by the State Government that they should be permitted to continue to make promotions applying rule 31 of the Kerala State and Subordinate Services Rules, 1955, without settling the question and without making regular promotions would be to keep this matter indefinitely in a state of flux. We do not think that we will be justified in setting aside the directions issued by the judgment under appeal. We should not however be understood as holding that there is nothing in the contention of the State Government that the view of the Central Government that approval cannot be granted to the principles embodied in Ext. P-3, is the correct position. This question may have to be examined in appropriate proceedings. We therefore vacate all the findings and observations made by the learned Judge in this regard in the judgment under appeal. Whether at this distance of time the State Government should pursue this matter further and whether at this distance of time, apart from the grounds mentioned in Exts. R-9 and R-15 the lapse of time itself is not a valid ground for refusing approval are all matters to be decided or considered by the State Government, the 1st respondent and the Central Government, the 2nd respondent if the question arises again. We merely clarify the position by stating that the matter is left open as far as this Court is concerned. 9. We accordingly dismiss Writ Appeal Nos. We merely clarify the position by stating that the matter is left open as far as this Court is concerned. 9. We accordingly dismiss Writ Appeal Nos. 147 and 149 of 1970. 10. Writ Appeal No. 163 of 1970 is against the judgment in O. P. No. 1114 of 1969 which judgment dealt with only one aspect of the question as to whether the petitioner therein can claim seniority over respondents 3 and 4 in that Original Petition who are respectively respondent No. 4 in O. P. No. 4786 of 1968 and the petitioner therein. This claim of seniority was based on the contention raised by the petitioner in O. P. No. 1114 of 1969 (who is the 5th respondent in O. P. No. 4786 of 1968) that his temporary service in the erstwhile Madras State should also be taken into consideration in applying the principles of integration; applicable for settling the inter se seniority of the persons allotted to the Kerala State. This was negatived by the judgment under appeal and we think, rightly. If there has been any mistake, it appears to have been committed by the Madras State as long ago as 28th March 1955. The petitioner in the Original Petition did not challenge the, order appointing Sri K. R. Ramaswami as the Executive Engineer since the petitioner was away on other duty in the Kosi Project. From Ext. P-1 produced along with the Original Petition it appears that the appointment of Sri Ramaswami was not correct. This is a matter which should have been rectified by agitating at the appropriate time before the Madras State. Not having done that, it is not open to the petitioner to claim that he should have been deemed to be in service for the period when Ramaswami was admittedly in service. We therefore see no reason to interfere with the judgment in O. P. No. 1114 of-1969. We accordingly dismiss Writ Appeal No. 163 of 1970. 11. The learned Judge in the judgment under Writ Appeal Nos. 147 and 149 of 1970 gave a direction that the State Government should decide the question of the rank of the petitioner in O. P. No. 4786 of 1968 in the gradation lists attached to Ext. P-4 and Ext. R-1, and comply with the directions contained in the judgment within three months from the date of the judgment, viz., 4th June, 1970. P-4 and Ext. R-1, and comply with the directions contained in the judgment within three months from the date of the judgment, viz., 4th June, 1970. Accordingly a fresh list of the Travancore-Cochin personnel was published in the Kerala Gazette dated 11th August 1970. But no further steps to fix the rank of the petitioner in the Original Petition vis-a-vis that of the respondents had been made apparently because of the pendency of the Writ Appeals and in view of the stay order on CM.P. No. 12517/70, dated 20th August 1970 in Writ Appeal No- 147 of 1970. Now that the appeals have been dismissed and the stay order has been cancelled, it is necessary that the directions contained in the judgment under appeal must be implemented forthwith. We direct that this will be done within two months from today. 12. We direct the parties in all these Writ Appeals to bear their respective costs. 13. A copy of this judgment will be sent to the Chief Secretary to Government of Kerala, Trivandrum from this Court.