Case: M. D. Shukla &amp; Ors Vs. State Of Gujarat &amp; Ors

was and must remain purely provisional until final integration is made by the Central Government. It is common ground that no such final integration had been made by the Central Government.14. Two grounds appealed to the High Court in deciding the case against the appellants: (1) that the appellants were transferred to the Secretariat of the State of Gujarat, but they were not absorbed in the ministerial service of the Secretariat of the State of Gujarat. In the view of the High Court there was nearly (sic) "regularisation" of the appointment of those persons for the purpose of performing service in the Secretariat; and (2) that the order dated August 19, 1966 was contrary to the Recruitment Rules. 1957.15. If it be granted that the State was competent to transfer and did transfer the appellants to perform service in connection with the affairs of the State in the Secretariat, it is difficult to hold that when the State "regularised" the service of the appellants in the Secretariat with the consent of the Public Service Commission there was no absorption under the Absorption Rules. It is true that the expression "absorption" has not been used in the order, but that will not justify an inference that there was no intention to absorb the former Saurashtra and Kutch States personnel in the Secretariat. In the absence of determination of equivalent posts under the orders of the Central Government, the State of Gujarat was competent, as a matter of provisional arrangement to absorb the former Saurashtra and Kutch States personnel in the ministerial establishment of the Gujarat State Secretariat. In terms the order says that the persons named therein "should be treated to have been regularly appointed in the posts shown against their names in column 4 of the statement" appended to the order. That, in our judgment amounted to absorption.16. Original Rule 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939, was deleted, and the following rule was substituted on May 22, 1957. The relevant part of the rule reads:"138. The ministerial staff in the Secretariat and attached offices is divided into two Divisions.(a) Upper; and (b) Lower.(i) Superintendents: Appointments shall be made by promotion from among Senior Assistants.(ii) Senior Assistants: Appointments shall be made by promotion from among Junior Assistants.(iii) Junior Assistants: Appointments shall be made either:-(a) by nomination on the results of a competitive examination held by the Bombay Public Service Commission, or(b) by promotion from among members of the Lower Division.Provided that not more than one out of every four vacancies in the posts of Junior Assistants shall ordinarily be filled by promotion.(2) To be eligible for appointment by nomination a candidate must:-(i) hold a degree in Arts, Law Science, Agriculture or Commerce of a recognised University or possess an equivalent qualification;(ii) have attained the age of 18 years; and(iii) not have attained the age of 30 years in the case of members of the Lower Division appointed on the recommendation of the commission and who have graduated while in service and in any other case 24 years on the first day of the month immediately following month in which the posts are advertised by the Commission.B. Lower Division(b) Clerks, clerk-typists, typists: Appointments shall be made by nomination on the results of a competitive examination held by the Commission. :Provided that suitable members of Class IV services who while in that service, have passed the Secondary School Certificate Examination or an examination recognised by Government as equivalent to that examination, shall be eligible for appointment to the posts of clerks by promotion(2) To be eligible for appointment by nomination, a candidate must:-(i) have passed the secondary school certificate examination or an examination recognised by Government as equivalent to that examination:(ii) have attained the age of 18 years, and(iii) not have attained the age of 23 years on the first day of the month immediately following the month in which the posts are advertised by the Commission.A candidate for the Post of clerk-typist or typist must, also be able to type neatly accurately at a minimum speed of 40 words Per minute.* * * *"17. The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of the Lower Division, nomination being on the result of a competitive examination held by the Public Service Commission and promotion being from the subordinate staff. In view of this rule, according to the High Court, it was not open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.18. Counsel for the appellants contended that Rule 138 only dealt with the existing servants and did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat. He also contended that the recruitment did not amount to admission of an officer for the first time in the service It is unnecessary for the purpose of this appeal to consider these arguments. Assuming that Rule 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under Article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired under the States Reorganisation Act, 1956, to hold posts in the new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was obtained, disadvantageous. Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision it is not open to the officers of the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officers in the Secretariat performing ministerial duties.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. It was conceded, and rightly, that the State has the authority to transfer, subject to the Constitution and the rules made under Article 309, any public servant to render service which by his training and aptitude he was competent to do. Transfer of the personnel from the States of Saurashtra and Kutch to the Secretariat in the State of Gujarat and assignment of duties performable by the ministerial staff in the Secretariat cannot be challenged, and that because they were posted between 1956 and 1960 in the Districts they will not be deprived of their statutory right under Section 115 (7) proviso. Posting in the districts was and must remain purely provisional until final integration is made by the Central Government. It is common ground that no such final integration had been made by the Central Government.The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of the Lower Division, nomination being on the result of a competitive examination held by the Public Service Commission and promotion being from the subordinate staff. In view of this rule, according to the High Court, it was not open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.18. Counsel for the appellants contended that Rule 138 only dealt with the existing servants and did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat. He also contended that the recruitment did not amount to admission of an officer for the first time in the service It is unnecessary for the purpose of this appeal to consider these arguments. Assuming that Rule 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under Article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired underthe States Reorganisation Act, 1956, to hold posts in the new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was obtained, disadvantageous. Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision it is not open to the officers of the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officers in the Secretariat performing ministerial duties.