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TMI Blog1967 (11) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... erson who immediately before 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 H shall, as 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 State. (3) As soon as may be after the appointed 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 effect. (4) 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 Governments concerned, and in default of such agreement, as may be determined by the Central Government. (5) The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recruitment to the post; (iv) the salary of the post; It 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 arrangement; (ii) age of the person; other factors being equal, for instance, seniority may be determined on the basis of age. Note: It was also agreed that as far as possible, the inter se seniority of officers drawn from the same State should not be disturbed." By a notification dated May 20, 1958 (Annexure R-2 of the counter-affidavit) the Government of India constituted a Central Advisory Committee under s. 115(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 of the Committee. were: "(i) To advise the Central Government in regard to the division and integration of members of the gazetted cadres of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity was afforded to the service personnel to make representations; (d) that the representations, if any, had been decided by the Central Government in consultation with the Central Advisory Committee; (e) that the decisions of the Central Government were correctly incorporated in the final common gradation list." In 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 16, 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vited, 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 1 to the writ petition) publishing the final gradation list of the establishment of "Buildings, Roads and Irrigation" in the Public Works Department and further directed the Central Government "to complete the work of the integration of the services in the aforesaid Department in conformity with the provisions of sub-s. (5) of s. 115 of the States Re-organisation Act, 1956". The first question to be considered in this appeal is whether the High Court was right in taking the view' that the work of integration was exclusively entrusted to the Central Government by s. 1 l 5 (5) of the said Act and that the final gradation list published on April 6, 1962 was illegal and ultra rites as the delegation of 'its powers and duties by the. Central Government to the State Government in regard to integration was not in accordance with law. Under Art. 162 of the Constitution it is provided as follows: "162. Subject to the provisions of this Constitution, the executive power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uniting. any territory to. a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State. Article 4 provides as follows: "(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. By virtue of the power under Art. 4 the said Act was. enacted. On behalf of the appellants the Solicitor-General put forward the argument that the Dower of integration is not exclusively conferred upon the Central Government under s. 115 (5) of the said Act but the power of the State Government in the matter of integration under Art. 162 read with Entry 42, List 11 remains unaffected except to the extent that the State Government must carry out the directions of Central Government in the matter of integr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se seniority of officers who had come into the cadre from different regions. The list was published and it was notified that any Government servant feeling aggrieved by the provisional list was entitled to send his representation to the Central Government. The principle upon which the list was prepared was published and it was notified that the principle was subject to any subsequent modification at the direction of the Central Government. Representations were thereafter received from officers including respondents 1 to 4, 6 & 7. The representations were sent to the Central Government to be dealt with in consultation with the advisory committees that were constituted. On a consideration of these representations the Central Government directed the State Government to forward the alternative list prepared on the basis of the conventional formula laid down by the Central Government As already observed, the State Government had proposed that seniority should be fixed on the basis of continuous service including that in the lower grade, but the Central Government had directed that continuous service in the equated grade alone should be taken into account for fixing the seniority subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to arrange the names on the basis of length of continuous service. Where a departure from this principle was intended, specific orders were issued or the names arranged in the desired sequence in the confirmation orders itself. 10. A rearrangement of the names of the Bhopal and Mahakaushal officers in the manner indicated above is a matter concerning the respective parent State seniority lists. However, a rearrangement of the names of these officers would have repercussions on the ranks of officers from other regions. It is, therefore suggested that the entire matter may be reviewed by the State Government in the light of the position stated in the two preceding paragraphs and the necessary changes carried out in the Combined Gradation List." In accordance with this direction the State Government prepared the inter se seniority list of Mahakoshal officers (Annexure R-14) dated February 20, 1962. On the basis of this list the final gradation list was prepared by the State Government and published on April 6, 1962. In our opinion, the procedure adopted in this case does not contravene the provisions of s. 115(5) of the said Act, because it was the Central Government which laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 eye of law no "delegation" at all and the maxim "delegatus non potest delegare" does not apply [See Fowler (John) & Co. (Leeds) v. Duncan]( [1941] Ch. 450). 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 authority's 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 rites 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 step ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff." We accordingly reject the argument of Mr. Asoke Sen on this aspect of the case and hold that the High Court was in error in holding that there was an improper delegation of its' statutory power by the Central Government under s. 115(5) of the said Act. We proceed to consider the next contention raised on behalf the respondents that in any event they should have been given a second opportunity to make a representation regarding: inter se seniority list of the Assistant Engineers of the former Mahakoshal region prepared on February 20, 1962, Annexure R-14, and (2) the final inter se seniority list published on April 6, 1962. With regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preliminary gradation list. On this point the Solicitor-General said that the final gradation list was prepared and the "assumed date" in column No. 6 was inserted on the principle of "kicking down". It was also pointed out by the Solicitor-General that in the Conference of the Chief Secretaries it had been agreed that in determining inter-State seniority the principle to be taken into account was length of continuous service, whether temporary or permanent in a particular grade. The argument was stressed that the principle could be, applied only on the basis of "kicking down" and that principle was implicit in the preparation of the final gradation list. We are, however, not quite sure whether the Solicitor-General is right in his contention on this point. We think that the final gradation list could have been prepared on the basis of the principle agreed upon in the conference of the Chief Secretaries both on the method of "'kicking down" and the 'alternative method of "kicking up". It is nowhere stated either in the preliminary gradation list or in the final gradation list that the principle of "kicking down" was adopt in preference to the alternative principle. It was argued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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