VASANT KRISHNARAO PATURKAR & ANR. v.

D. R. MAJRAMK'.AR & OTHERS

April 8, 1974,

[H. R. KHANNA AND P. N. GosWAMI, JJ.]

S1ates' Reorganisation Act, 1956--S. 115 and l11-Whetl1er Higf1 Court can decide issues of gradation senioriJy etc. of officers (lllotted to the bilingual state

of Bombal' after reorca11isation of States.

The appellants and the first 19 res, Pondents and respondents 22 to 24 re the employees in the Agriculture Dept. of the State of Maharashtra following reorganisation of states.

Respondents 1 to 19 were the original petitioners in S.C.A. No. 1354/70.

They were offi:cers of the former Hyderabad State. They prayed in their application for a writ to set aside the Bombay Government's Resolutions dated 17th February 1958 and 16th fay 1969 and.the provisional gradation List of 27th Seotemb:r 1969 and the promotion orders of 5th and 6th June 1970 and other coitsequential reliefs.

The Bombay High Court disposed of the application on merits ln favour of th.e appellants. The orders oC the High Court affected the interests of the present appellants. • Before the Nagpur Bench of the Bombay High Court, appellant No. 1 and three other officers lodged an applicaon impleading the State of Maharashtra and 88 other respondents including the present respondent 1 to 19. Respo_ndents 1 to 19 and others contested the application before the Nagpur bench unsuccessfully.

The Nagpur b:!nch allowed the writapplication and quashed the resolution of the Government dated 9-9-1960 and combined Seniority List of 22-8-62 and quashed the order of absorption of the petitioners and respondents 3 to 89.

The respondents, who were Agricultural officers from Hyderabad Region.

Preferred an appeal against the judgment of the Nagpur High Court fore the Supreme Cou1i. They were, allowed to withdraw the same without prejudice to all paties affected to make representations to the Government .in accordanc~

with :;. 115 of the Staes Reora, anisation Act 1956.

The Govern; nent of .Maharashtra made a new gradation list on 27-9·69 and allowed certair. consequential orders of promotion on 5th,, and 6th June, 1970.

This, therefore led to the Special Civil Application No. 1354 of 70 at the instance of respondents 1 to 19.

The appellant and another 1;1erson had also filed Special Civil Application No. 1126/71 in the Nagpur Bench for quashing the resolution of Bombay Government of 16th Mav 1969 on certain grounds. That matter is still pending in the Nagpur Bench. The respondents 1 to 19 were impleaded as respondents in that application but they, did not file anv affidavits in suppol't of their case.

When the matter came up for hearing, the appellants knew that another petition in the same subject was already decirled bv the Bombay High Court.

The appellants took immediate stet?s in the Bombay High Court but failed to obtain

any favourable orders. although they prayed for rehearing of the writ petition.

The oroblem is a difficult one to decide gradation, seniority etc. when officers of 3 different States are alloted to the new bilingual state of Bombay under the provisions of the States Reorganisation Act. Setting aside the impugned judg~ ment and order of the Botnba.y High court and directing restoration of the Special Civil Application No. 1354/70 and disposal of the same in accordance v.ith law,

HELD : {I) There is sufficient guideline in Part X of the States Reorganisation Act 1956 and als9 in Part Vlll of the Bomtiav Reorganisation Act 1960

that lhe Government of India is the final authority in the matter of division and A integration of services among the new states tO ensure a fair and equitab1e 1reatment to all perons affected by the reorganisation including proper consider-

11:tion of any representation made by concerned persons.

Further it. is well

settld that the Central Government under Sec .. 115 or the Act has to determine the principles governing equation of pests and prepare common gradation lists by integration of services an•j in doing so to ensure fair and equitable treatment to all persons concerned: [860 H; 861 A-B] I

Q. Rajian Rai 11nd Ors. v. Union of b1dia & Or.if. A.I.R. 1974 S.C. 457, N.

S11bbe1 RC10 etc. v. Union of India & Ors. [1972] 2 S.C.C. 862; and Uh.ion of /11d111 and a1101/ier v. P. K. Roy & Ors. [1968] 2 S.C.R. 186, referred to.

(II) The High Court cannot clothe upon itself the authority for pedormin1 the functions which are :>pecifically and expressly intended to be the duty of the •..:entral Government under the Act.

Therefore, the High Court was not right in directing the State Government to do that which under the provisions of the Act is within the domain of the Central Government and secondly, in fixing a

ime limit for action and if the same is exceeded, directing an auto1natic entitlement tO the :iecond relief as to equation, ab.iorption and fixation of seniority as pr;:iJed for by respondents 1 to 19. [861 D]

(111) Jn the .Present case, a1though the High Court observed that there was sufficient cause for rehearing the special Civil application; it wrOngfuUy did not give any Opportunity to th!! petitioners nd b'le State of Maharashtra tQ convass their respective poinl'!. of view against the writ petition.

Under the circumstances, this Court -directs rehearing of the sped-Ill civil applicatiol). no. 1354/70 after givi!J.g opportunities to a]) the parties concerned. [862 Q

CIVIL APPELLATE JURISDICTION :-Civil. Appeal No. 1227 ot 1972.

Appeal by special leave from the judgment and order dated the 9th December, 1971 of the Bombay High Court in Special Civil Application No. 1354 of 1970.

M. N. PJ.adke, Naunit Lal and Lalita Kohli, for the appellant.

S. c. Agarwala, K. K. Singhvi, R. K. Garg., S.S. Bhatf>/iagar and

v. J. Francis, for respondent Nos. 10.& 14.

M. C. Rhandare and M. N. Shroff, for respondentNos. 20--24.

The J utlgment of the Court was delivered by-

GmwA M 1, J.-This appeal by special leave is dirocted against the judgment of the High Court of Bombay of 9th December, 1971, in Special Civil Application (S.C.A.) N<>. 1354 of 1970 under Article 226 of the Constitution. The appellants and the first nineteen .re,..

pondents and respondents 22 to 24 are at present the employees in the Agriculture Department of the State of Maharashtra following reorgani .. tion of States on !st November, 1950.

Respondents I to 19 were the original petitioners in S.C.A. No. 1354 of 1970. They were officers from the former Hyderabad State

p1ior to the State.s Reorganisation Act, 1956, (briefly called the Act).

They prayed in their said application for a writ to set aside the Bombay Government's Resolutions of 17th February, 1958 and

I 6th May, 1969 and the provisional gradation list of 27th September, 1969 and the promotion orders of 5th and 6th June, 1970

.,.

... .. ,

' c

and other consequential reliefs.

They h'!d impleaded in the said application five respondents, the first two being the State of Maharashtra and the Director of Agriculture, Maharashtra and the remain ing three respondents were the three Agricultural Officers impleaded in a representative capacity by leave of the High Court under order 1, rule 8, Civil Procedure Code.

These respondents (Nos. 3 to 5) did not appear to contest the application in th~ Bombay High Court and it is alleged that they had no interest in the matter and were in collusion with the appellants. Even the first two respondents, namely, the State of Maharashtra and the Director of Agriculture, went by default, although a belated prayer to enter appearanc.e had been made through counsel on behalf of the State of Maharashtra after commencement of arguments, on the day of final hearing, which was, however, rejected by the High Court. The application was then disposed of, ex parte, on merits by the High Court in favour of the applicants. It is not disputed that the order of the High Court directly affects the interests of the present appellants, who are Agricultural Officers from the Madhya Pradesh region.

From Bombay we may now turn to the Nagpur Bench of the said High Court. Tliere the appellant No. 1 and three other Agricul'ural Ofticers lodged a Special Civil Application No. 361 of 1964 impleading the State of Maharashtra and 88 other respondents, including the present respondents 1 to 19.

Respondents. 1 to 19 and others contested the application before the Nagpur Bench unsuccessfully .. The Nagpur Bench of the High Court allowed the Writ application by its judgment and order dated 6th December, 1967 and the operative part of the same may be quoted.

"Accordingly, we allow the petition and quash the resolution of the Government dated 9-9-1960 and combined seniority list issued by the Government on 22-8-1962.

If the State Government wants to alt.er the basis of equation originally fixed on 17-2-1958, an opportunity to make representation against ihe proposed alteration has to be given to the persons likely to be affected.

The State Government will now take an appropriate action.

The neces· sary correspondence of quashing of these two orders is that the irtermediate order of absorption which is necessary step after inter se seniority and gradation list can be compiled is also to be quashed.

Acoordingly, we quash the order. of absorption, so far as these petitioners and respondents No. 3 to 89 are concerned, dated 11.5.1962 ..... ".

The respondents, '.!'ho were Agricultural Officers from Hyderabad region, preferred an appeal against the judgment of.-Oie Nagpur Bench being No. 1366 of 1968 in this Court. They were, however, allowed by this Court on 23rd January, 1969, to withdraw the same "without prejudice to all parties affected to make representations to the Government in accordance with section 115 of the States Reorganisation Act, 1956"

After the above order of this Court, it is said that many Agri- A cultural Officers made representations to the Government of India under section 115 of the Act. The Government of Maharashtra possed a Resolution of 16th May,, 1969, purporting to be an order giving new equation of posts in the Agricultural Departmnt in pursuance of which a gradation list was made on 27th September, 1969.

Then followed certain consequential orders of promotion of 5th and 6th June, 1970.

This, as already noticed, led to the Special Civil B Application No. 1354 of 1970 at the instance of respondents 1 to 19 ""d the operative part of this impugned order of 9th Decembor J9il, is. m the tollowing terms :- '

"For the reasons stated in the accompanying judgment, the Court makes absolute with costs the rule granted by it on 30. 6. 70 in terms of the prayer (a) of the petition. The c Court further directs that if respondent No. 1 fails to decide the question of equation of posts held by the petitioners in the former Hyderabad Sta.te in acordanc-o. with law and the observa'.ions in this Judgment within three months from 9.12.71, Respondent No. I shall equate the posts of Agricultural Assistant of the former Hyderabad State in the scale of Rs. 176-300 with the posts of Agricultural Officer, D Grade I of the former Bombay State in the scale of Rs. '210-10-300 and to absorb the petitioners and to fix their

soniority on that bosis with effect from the 1st day of November 1956"

The appellant and another person had also filed Special Civil Application No. 1126 of 1971 in the Nagpur Bench for quashing tile

F - Resolution of the Bombay Government of 16th May, 1969, on certain grounds. That matter is still pending in the Nagpur Bench. The respondonts I to 19 were impleaded as respondents in that application and although they had been served, they did not file any return when the said application came up for hearing at Nagpur on 2nd February, 1972.

The learned Government Advocate, however, mentioned to the court that another petition on the same subject had F already been decided by the Bombay High Court. It is said that this was the first time when the appellants came to know of the impugned judgment and took immediately steps in .the Bombay High Court to set aside the order and for rehearing the writ petition, but failed to obtain favourable orders.

The problem is indeed ticklish and sensitive concerning integra- G tion, absorption, gradation and fixation of appropriate seniority o[ the officers throwing by act of the State their common lot from different areas, namely, the former State of Madhya _Pradesh, former State of Hyderabad and the former State of Bombay allotted to the new bilingual State of Bombay under the provisions Of the satcs Reorganisation Act. It is, however, cleat that there is sufficient guideline in Part X of the States Reorganisation Act, 1956 as also u larer in Part VIII of the Bombay Reorganisation Act 1960 and it is reserved for the Government of India, advisedly, to be the final authority in the matter of division and integration of services amoug

' '

' A :the new States to ensure a fair and equitable treatment to all persons

:iliected by the reorganisation including proper consideration of any representation made by concerned persons. (See section 115 and section 117 of the Act and sections 81 and 83 of the Bombay Ro ,, rganisation Act, 1960).

It is well settled that the Central Government under section 115 d the Act has to de-termine the principles governing equation of posts and prepare common gradation lists by integration of services

nd in doing so to ensure fair and equitable treatment to all persons concerned. The Central Government is also required to give opportunities to the parties affected to make their representations. (See D. Rajian Raj & Others v. Union of India & others('); N. S11bba Rao etc. v. Union of India and Others( 2) and Union of India & Anr. v. P. K. Roy & Ors.(3) ).

The High Court cannot clothe upon itself the authority for performing the functions which are specifically atiil expressly intended to he the obligation and duty of the Central Government under the Act.

The High Court is, therefore, not right in two matters namely, in directing the S•ate Government to do that which under the provi D sions of the Act is within the domain of the Central Government and secondly in fixing a time limit for action and, if the same is exceeded, directing an. automatic entitlement to the second relief as to equation, absorption and fixation of seniority is prayed for by respondents 1 to 19. This view of the High Court is clearly erroneous in view of the provisions of the Act.

£ That, however, does not dispose of this matter. Mr. Phatlkc, learned counsel for the appellants, raises several questions before us.

Firstly, that the Division Bench of the High Court could not sit in appeal against the Division Bench decision of the Nagpur Bench which is binding on the respondents, 1 to 19. Secondly, that there is clear violation of the principles of natural justice in disposing of the writ pe'ition by the High Court, ex parte, and in not reviewing its order F when sufficient cause was shown by the appellants herein.

Thirdly, that the High Court should not have allowed the application under order I, rule 8, Civil Pro:edure Code, and should have insisted upon personal service of the rule nisi on the affeced petitioners in a service matter of such implications.

G Mr. Bhandare, learned counsel for the Stale of Maharashtra, also, inter a/ia, took the point that the Central Government was a necessary party and the petition should have been dismissed by the High Court for non-joinder of that Government.

lt is not necessary for us to go into these questions in. view of the High Court's order of December 24, 1971~ in Civil Application No. 3261 of 1971, of the State of Maharashtr~ and the Director of

(I) A, tR. 1974 SC 457-1973 (I) sec 61

(2) 1972 (2) s.c.c. 8<2 (l} [19681 (2) SCR 186.

Aj; riculture praying for permission to file an affidavit in reply to the, ... A writ petition and for 'contesting the petition on merits. The High Court observed "we are satisfied on reading these affidavits that there was sufficient cause for rehearing the Special Qvil Application", but on perusal of the affidavit in reply and hearing counsel for the State rejected th~ said petition.

The High Court also dismissed the petitioners' application for rehearing the writ application.

We are not satisfied that the High Court was right in not allowing_ an cippcrtunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter bad been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category.

The High Court itself observed, as noticed above, "there was sufficient cause for rehearing".

Without, therefore~ going into the various points raised before us, we set aside the impugned judgment and order of tiie Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned.

We further direct that respondents 1 to 19 shall take steps in the High Court to implead the Central Government as well as. the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 of 1970

The appeal is allowed on the terms indicated above. There will bt: 110 order as to costs in this appeal.

s.c.

Appeal (I/lowed.