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

1. Certain officers in the ministerial branch of the Secretariat Service of the State of Gujarat moved a petition in the High Court of Gujarat for an order directing the State Government to treat its order dated August 19, 1966 as "illegal, void and of no effect" and to forbear from enforcing Its order treating the persons whose names were specified in the annexure to the order as servants of the "Secretariat cadre." The High Court of Gujarat granted the petition and declared the order dated August 19, 1966, invalid. With certificate granted by the High Court this appeal has been filed.2. Prior to November 1, 1956, the appellants were holding permanent posts in the ministerial service of the Secretariats of the Part B State of Saurashtra and the Part C State of Kutch. By virtue of Section 8 of the States Reorganization Act 37 of 1956 the new State of Bombay, which included the territories of the States of Saurashtra and Kutch, was formed. S. 115 of the States Reorganisation Act made provisions relating to services other than All-India Services. By sub-section (1 of Section 115 it was enacted, inter alia, that every person who immediately before the appointed day was serving in connection with the affairs of any of the existing States specified therein 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. By the proviso to sub-section (7) it was provided that conditions of service applicable immediately before the appointed day to the case of any person allotted to another State shall not be varied to his disadvantage except with the previous approval of the Central Government. Section 116 provided for the continuance of officers in the same posts. By Section 117 power was conferred upon the Central Government to give directions to any State Government that may appear to be necessary for the purpose of giving effect to the provisions of Sections 114, 115 and 116 of the Act.3. Underthe States Reorganisation Act, 1956, the appellants were allotted service in connection with the affairs of the new State of Bombay. In exercise of the powers under Article 309 of the Constitution, the Government of Bombay sanctioned certain rules called "The Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957". Those rules governed the servants who were allotted to the State of Bombay on reorganisation. A large majority of the members of the ministerial branch of the Secretariats of the States of Saurashtra and Kutch were, it appears, unwilling to be posted in the Secretariat of the new State of Bombay. They were accordingly posted in the districts of the former States of Saurashtra and Kutch.4. Under Act 11 of 1960 called "The Bombay Reorganisation Act" the States of Gujarat and Maharashtra were carved out of the territory of the new State of Bombay. Under Section 81 provisions relating to services other than All-India Services were made and by Section 82 provisions as to the continuance of officers in the same posts was made. By Section 83 power was given to the Central Government to give directions to the States. Those provisions were substantially the same as the provisions of Sections 115, 116 and 117 ofthe States Reorganisation Act, 1956. The appellants were allotted service in connection with the affairs of the State of Gujarat under S. 81 of the Bombay Reorganisation Act.5. The newly constituted State of Gujarat finding a dearth of experienced officers in the Secretariat transferred the appellants at divers times between the years 1961. 1962 and 1963 to the Secretariat of the State of Gujarat and assigned them duties in connection with the Secretariat Service. Orders were issued from time to time fixing their scales of pay and seniority. Apparently the Public Service Commission raised some objections about an attempted integration between the officers who were originally serving in the Secretariat Service, and those who were posted from the districts. Ultimately on August 19, 1966, the State Government issued the order to the followingquestion of regularising the appointment to various posts in the Secretariat Department on and after 1st May 1960 of the drafted persons was under the consideration of Government for some time. Government is now pleased to direct in consultation with the Gujarat Public Service Commission that the persons shown in the accompanying statement should be treated to have been regularly appointed in the posts shown against their names in column-4 of the statement with effect from the date shown in column-5 in the Departments mentioned in column-3 of the statement.2. As regards fixation of their pay and seniority orders have already been issued in Government Resolution General Administration Department No. SCT1161-F, dated 25th April, 1961 and Government Resolution General Administration Department No. SCT1]62-KH, dated 14th March 1964. The Departments are requested to fix their pay and seniorityto the order was a list of 90 persons designating the departments in which they were posted, posts to which appointed and the dates from which they were appointed.6. The officers of the Secretariat who before the date of the order constituted the ministerial service then filed the petition out of which this appeal arises challenging the validity of the order of the Government. The petition was founded on three grounds: (1) that the order violated Rule 138 of the Recruitment Rules framed by the Government of Bombay in 1957: (2) that the order violated the proviso to Clause (6) of Section 81 in that it altered the conditions of service of the applicants, and (3) that it violated the provisions of the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957.

Reasoning:
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.