Case: Union Of India &amp; Anr Vs. P.K. Roy &amp; Ors

1. This appeal is brought, by special leave, from the judgment of the Madhya Pradesh High Court dated April 29, 1964 in Miscellaneous Petition No. 371 of l962. By its Judgment the High Court held that the preparation of provisional gradation lists by the State of Madhya Pradesh under the relevant provisions ofthe States Reorganisation Act, 1956 (Act 37 of 1956), hereinafter referred to as the said Act, was unwarranted in law and the final list published on April 6, 1962 prepared by the State Government under instructions from the Central Government with regard to the integration of officers of the Engineering Department was illegal and ultra vires and must be quashed by the grant of a writ2. The said Act was enacted to provide for the reorganisation of the States of India and for matters connected therewith and came into force with effect from November 1, 1956. By Section 9 (1) of the said Act there was formed a new State to be known as the State of Madhya Pradesh comprising the following territories :(a) the territories of the existing State of Madhya Pradesh except the districts mentioned in Clause (c) of sub-section (1) of Section 8,(b) the territories of fee existing State of Madhya Bharat; except Sunel tappa of Bhanpura tahsil of Mandsaur district ;(c) Sironj sub-division of Kotah district in the existing State of Rajasthan;(d) the territories of the existing State of Bhopal; and(e) the territories of the existing State of Vindhya PradeshRespondents 1 to 13 were Assistant Engineers in the erstwhile State of Madhya Pradesh. The first four of them were appointed as such on probation from October 27, 1956 and the others had been appointed as temporary Engineers. The respondents continued to serve in the new State and new Buildings, Roads and Irrigation Branch of the Public Works Department was constituted with the officers taken over from the absorbed States and regions. The integration of the services became therefore necessary and a principle had to be evolved for integration of the services and fixing inter se-seniority as several officers had been taken over into the reconstituted branch.Section 115 of the said Act provides as follows :115. Provisions relating to other services :1. Every person who immediately be fore the appointed day is serving in connection with the affairs of the Union under the administrative control of the Lieutenant Governor or Chief Commissioner in any of the existing States of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala, and East Punjab States Union and Saurashtra 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 State2. Every person who immediately be fore 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, a 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 State3. As soon as may be after the appoint ed 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 effect4. Every person who is finally allotted under the provisions of sub-section (3) to a successor State shall, if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Government concerned, and in default of such agreement, as may be determined by the Central Government5. The Central Government may by order establish one or more Advisory Committees for the purpose of assisting it in regard to -(a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras; and(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such personsSection 116 provided for the continuance of officers in the posts they previously held and Section 117 empowered the Central Government to give directions to the State Government in respect of their integration. Section 117 enacts :The Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directionsSubsequent to the passing of the said Act a meeting of the Chief Secretaries of the various States that were to be affected by the reorganisation was held at Delhi on May 18 and 19, l956 at the invitation of the Central Government. In this meeting certain decisions were taken as to the general principles that should be observed with regard to the integration work. By their letter No. 62/22/56 SR 11 dated April 3, 1957 (Annexure R-l of the counter-affidavit) the Government of India informed the State Government that they had decided that the work of integration of services should be dealt with by the State Governments in the light of general principles already decided in the meeting of the Chief Secretaries. The State Governments were also informed that the Central Government was constituting Advisory Committees for assisting them in dealing with the representations from the officers affected by reorganisation. With regard to the principle for determining equation of posts and relative seniority the following conclusions were reached at the conference of the Chief Secretaries :It was agreed that in determining the equation of posts, the following factors should be borne in mind:-(i) the nature and duties of a post(ii) the responsibilities and powers exercised by the officers holding a post; the extent of territorial or other charge held or responsibilities discharged;(iii) The minimum qualifications, if any, prescribed for recruitment to the post;(iv) the salary of the postIt was agreed that in determining relative seniority as between two persons holding posts declared equivalent to each other, and drawn from different States, the following points should be taken into account :(i) Length of continuous service, whether temporary or permanent, in a particular grade; this should exclude periods for which an appointment is held in a purely stop-gap or fortuitous arrangements;(ii) age of the Person other factors being equal, for instance, seniority may be determined on the basis of ageNote: It was agreed that as far as possible, the inter seniority of officers drawn from the same State should not be disturbedBy a notification dated May 20, 1958 (Annexure R-2 of the counter-affidavit) the Government of India constituted a Central Advisory Committee under Section l15 (5) of the said Act for the purpose of assisting the Central Government in dealing with the problems arising out of the allocation and integration of the services. The functions the Committee were:(i) To advise the Central Government in regard to the division and integration of members of the gazetted cadres of the State Services among the new State among the States of Andhra Pradesh and Madras, and(ii) To make recommendations to the Central Government with a view to ensure that fair and equitable treatment is given to the service personnel belonging to the Gazetted cadres of the State Services who are affected by the State Reorganisation and to consider representations submitted by themAs directed by the Central Government, the State Government also appointed the necessary committees to undertake the preliminary work of integration. On September 12, 1959 a provisional gradation list of the department to which the respondents belonged was published by the State Government by notification No. 3175-Integ. dated September 12, 1959. In the preamble attached to the provisional list the principles (which were already approved by the Central Government) on the basis of which the lists were prepared, were set out. But there was a proviso to Clause (2) of the preamble which said that where a service or cadre consists of compartments grades and where the normal method of recruitment to a high compartment grade is by promotion from a lower compartment grade continuous service will ordinarily be reckoned from the date of commencement of service in the lowest compartment grade, on a salary not below such limit as may he specified in this behalf. Representations were received from several officers including respondents 1 to 4, 6 and 7. These representations were sent by the State Government to the Central Government for being dealt with in consultation with the Advisory Committee it had constituted. Thereafter a reference was made by the State Government to the Central Government seeking its directions regarding publication of the final lists. In reply there to the Central Government conveyed its decision by a letter dated November 11, 1959 to the following effect :1. The State Government should publish the final common gradation list in its official gazette following the prescribed procedure;2. The State Government will prefix to the notification publishing a common gradation list, a preamble on the lines drafted by the Central Government;3. The State Government was to be satisfied;(a) that the provisional gradation list was prepared after following the principles laid down by the Central Government(b) that it was published in the official gazette;(c) that an opportunity was afforded to the service personnel to make representations;(d) that the representations, if any, had been decided by the Central Government in consultations with the Central Advisory committee;(e) that the decisions of the Central Government were correctly incorporated in the final common gradation listIn their letter dated August 29, 1960 the Central Government pointed out that the State Government had prepared the provisional gradation list not on the basis of continuous service in the equated grade but on the basis of length of total service including service in the lower grades. The State Government was therefore directed to prepare an, alternative gradation list on the basis of the conventional formula of continuous service in the equated grade subject to maintenance of inter se-seniority. The State Government complied with this direction. In their letter dated September l6, 1961 the Central Government said that the procedure adopted by the State Government for determining inter se-seniority on the basis of length of total service in gazetted posts could not be approved. On the contrary, the decision of the Central Government was that inter se-seniority should be determined on the basis of continuous length of service whether in a temporary or permanent capacity in the equated grade, and the second list prepared by the State Government on that basis was approved subject to two modifications: (i) The ranking of the officers from Bhopal region (serial Nos. 60 to 70) should be rearranged as per ranking given by the Union Public Service Commission, (ii) In the case of officers from Mahakoshal region (Serial Nos. 59 onwards) it was pointed out that the then State of Madhya Pradesh had not passed orders fixing the ranking of the said officers and hence the ranking should be done by the State Government keeping in view the normal rule of fixing ranks with reference to date of appointment on a substantive vacancy, whether on probation or as confirmed officer. It was further directed that as the re-arrangement as per modifications suggested was likely to affect the ranks of officers of other regions the entire list should be reviewed in the light of directions given by the Central Government. On this direction of the Central Government the inter se-seniority of the officers of Mahakoshal region was refixed by the State Government by its letter No. 1086/6216/XIX/E dated February 20, 1962. In the light of this list the provisional gradation list was also revised. As already directed by the Central Government in its letter dated November 11, 1959, the State Government published the final gradation list with the preamble attached to it stating that the final list was being published by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution and in accordance with the decision of the Government of India under the provisions of Section 115 (5) of the said Act. The final gradation list was published by the State Government on April 8, 1962The respondents thereafter moved the High Court of Madhya Pradesh for grant of a writ under Article 226 of the Constitution. The validity of the final gradation list was challenged on the ground that it was not made in accordance with the provisions of Section 115 (5) of the said Act but in contravention of that provision. It was also alleged that in so far as the State Government, in drawing up the final gradation list, followed a principle different from the one followed in preparing the provisional gradation list on the basis of which representations were invited, the State Government had in effect denied the right of representation to the persons affected thereby. The writ petition was allowed by the High Court which quashed the notification dated April 6, 1962 (Annexure I to the writ petition) publishing the final gradation list of the establishment Buildings, Roads and Irrigation the Public Works Department and further directed the Central Government to complete the of the integration of the services the aforesaid Department in conformity with the provisions of sub-section (5) of Section is 115 of the States Reorganisation Act,1956.

Reasoning: our opinion, the procedure adopted in this case does not contravene the provisions of Section 115 (5) of the said Act, because it was the Central Government which laid down the principles for integration, it was the Central Government which considered the representations and passed final orders, and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government. It is manifest that there has been no delegation by the Central Government of any of its essential functions entrusted to it under the statute. It was pointed out by Mr. Asoke Sen that in its letter dated April 3, 1957 the Central Government had intimated that the work of integration should be left to the State Government. But what was meant by that letter was that only the preliminary work of preparation of the gradation lists on the principles decided upon by the Central Government should be left to the State Governments concerned. It is clear that such work cannot be done by the Central Government itself since the necessary information regarding the officers can be obtained and tabulated only by the States concerned. It was also pointed out by Mr. Asoke Sen that the preparation of the provisional and the final gradation lists by the State Government constituted .a delegation by the Central Government. We do not think there is any substance in this argument. It is not disputed that the provisional and the final gradation lists were prepared by the State Government on the principles laid down by the Central Government itself subject to on change in the matter of determining seniority and the provisional gradation list was sent for approval of the Central Government together with representations made by the officers concerned for being dealt with and decided upon by the Central Government. The principle of the maxim delegatus non potest delegare has therefore no application to the present case. The maxim deals with the extent to which a statutory authority may permit another to exercise a discretion en trusted by the statute to itself. It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree there is in the eve of law no delegation at all and the maxim delegatus non potest delegare does not apply [SeeFowler (John) and Co. (Leeds) v. Duncan. 1941-Ch. In other words if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own. In the context of the facts found in the present case we are of opinion that the High Court was in error in holding that there has been an improper delegation of its statutory powers and duties by the Central Government and that the final gradation list dated April 6, 1962 was therefore ultra vires and illegal. Even on the assumption that the task of integration was exclusively entrusted to the Central Government, we are of the opinion that the steps taken by the Central Government in the present case in the matter of integration did not amount to any delegation of its essential statutory functions. There is nothing in Sections 115 or 117 of the said Act which prohibits the Central Government in any way from taking the aid and assistance of the State Government in the matter affecting the integrations of the services. So long as the act of ultimate integrations is done with the sanction and approval of the Central Government and so long as the Central Government exercises general control over the activities of the State Government in the matter it cannot be held that there has been any violation of the principle delegatus non potest delegareNormally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. [See the decision of this Court in Shri Bhagwan v. Ram Chand, 1965-3 SCR 218   at p. 222 = (AIR 1965 SC 1767   at p. 1770)]. In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents, with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.The rest of the notification of the State Government dated April 6, 1962, with regard to other categories will stand unaffected. So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law.