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TMI Blog1969 (4) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... Act; the territories of the existing State of Travancore-Cochin excluding the territories transferred to the State of Madras by Section 4 of the Act; the territories comprised in Malabar district excluding the islands of Laccadive and Minicoy: and Kasarged taluk of South Kanara district. The petitioners were all serving in relation to the affairs of the State of Madras and were working in the Malabar district of the State on 31-10-56. But for a provisional order under Sub-section (2) of Section 115, they would have continued to serve in connection with the affairs of the principal successor State to the Madras State, which is Madras State itself as defined in Section 2(m) of the Act. Orders were however passed under Sub-section (2) of Section 115 of the Act by the Central Government requiring the petitioners to serve provisionally in connection with the affairs of the Kerala State. Orders have also been passed under Sub-section (3) of Section 115 of the Act determining Kerala State as the successor State to which the petitioners should be finally allotted and fixing 1-11-56 as the date from which such allotment should take effect. These orders need not detain us as the allotment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the final integrated gradation list as they were not and cannot be treated as members of the judicial service. Alternatively it has also been contended that in any event they should not be given ranking above the petitioner and others who belonged to a validly constituted judicial service. To reckon them as members of the judicial service and rank them above the petitioner and others is neither fair nor equitable and is therefore violative of Section 115 (5) of the Act. This sub-section runs thus: 115(5) 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 persons. 5. Arguments were also advanced on the questions as to whether the Central Government is the original and exclusive authority in the matter of integration of services or whether it was only an appellate authority or whether it was only an authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Article that what is required by its terms in the matter of consultation is about the rules that are proposed to be framed. This consultation must be with the State Public Service Commission and the High Court exercising jurisdiction in the State. In this respect, Article 234 is different from Article 233; the latter requiring consultation with the High Court in the matter of appointment of each and every District Judge. 9. Rules, purporting to be under Article 234 of the Constitution, were admittedly framed and published, only on 3-10-53. Regarding the appointments that have been made to the Subordinate Judicial Service between the dates 26-1-50 and 3-10-53, the contention raised on behalf of the State Government and the Central Government, respondents 1 and 2 to this writ petition, as well as some of the other respondents, is that the appointments in question have been made in accordance with the rules contained in what is called the Civil Courts Guide (Rules 314 and 315 thereof) which were in force in the former Travancore-Cochin as well as what is contained in Order 21 of the Standing Orders of Cochin applicable to the former Cochin State. These provisions, it is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Maharajas did not even profess to exercise their law-making power in making the Civil Courts' Guide and passing the Standing Orders. It is also urged that the provisions contained in the rules framed on 3-10-1953 are against the terms of Article 234 as they have not been framed after consultation with the Public Service Commission. We do not consider that we should deal with this question in this case or with the question as to whether the Public Service Commission had been duly constituted for we are of the view that there has been substantial compliance with the provisions of Article 234 of the Constitution in the matter of appointment of respondents 4 to 21 as contended by the first respondent and respondents 6 and 8 and that the petitioners are not entitled to question the validity or otherwise of the constitution of the Public Service Commission and the appointment of its members as this will amount to a collateral attack on the constitution of the Public Service Commission and the appointment of its members. 11. What has been done in the matter of appointments of respondents 4 to 21 has been detailed in the affidavit of the first respondent and some of the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed in Rules 314 and 315 of the Civil Courts' Guide. These have been stated in the notification published in the Gazette on the 4th July, 1950 by the Public Service Commission. The Public Service Commission has therefore also approved all these qualifications. The Governor mentioned in Article 234 must be read as the Rajpramukh by virtue of Article 238 (1) as Travancore-Cochin State was a Part B State at that time and the appointments have been made by the Rajpraniukh in accordance with the rules regarding qualifications prescribed by Rules 314 and 315 of the Civil Courts' Guide which were accepted by him in consultation with the Public Service Commission and the High Court. We are satisfied that there has thus been substantial compliance with the provisions of Article 234 of the Constitution and the appointments made cannot be said to be invalid as infringing that Article. 13. It was suggested at the time of the arguments that the appointments made were against the provisions of Articles 15 and 16 of the Constitution in that the principle of communal rotation that was in vogue in the State and which is referred to in Rule 315 of the Civil Courts' Guide was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on their existing salary for a term of six years with effect from the 26th January, 1950, or until they attain the age of sixty, whichever is earlier was published. 15. By another notification dated 3-3-50 published in the Travancore-Cochin Gazette dated 14-3-50 Shri Ramavarma Thampuran mentioned in the earlier notification was appointed as Chairman and Shri V. Kunhikrishnan as a member in his place. Article 315 of the Constitution enjoins that there shall be a Public Service Commission for each State and this provision will have effect from 26-1-50, the date on which the Constitution came into force. There is no need therefore to constitute a Public Service Commission thereafter. All that is required is to appoint its members as envisaged by Article 316 of the Constitution, subject to the restrictions contained in that Article. Under this Article as far as the Travancore-Cochin State is concerned, the authority to appoint the Chairman ana members of the Public Service Commission of the State is vested in the Raj Pramukh. The appointment of Shri Ramavarma Thampuran and Shri R. V. Thomas by the Raj Pramukh would therefore be a valid appointment of the members of the Commission i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution and at the time of the framing of the rules under Article 234 of the Constitution must therefore be taken to be consultations with the Public Service Commission duly constituted. The principle that there can be no collateral attack has been dealt with by the Travancore-Cochin High Court in the decision in Parameswaran Pillai Bhaskaran Pillai v. State Prosecutor, reported in AIR 1951 Trav Co 45. After an elaborate survey of the law of the subject it was held: The right ,of a de facto Judge to hold his office is not open to question nor is his jurisdiction subject to attack in a collateral proceeding. . . .To raise the competency of the Chief Justice to hear and decide certain appeals when they were taken up for hearing or in the proceeding for leave to anpeal to the Supreme Court against that judgment, or in the appeal before the Supreme Court would amount to collateral attack. The particular case arose on an application for leave to appeal to the Supreme Court from a judgment of the Travancore-Cochin High Court and one of the grounds raised in that application was that the Chief Justice of the High Court was not validly appointed. This contention was negatived. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 2-5-1960 and 40251/SI. 2/62/PD dated 6-7-1962, the petitioner has applied for no such review, nor has he made any counter representation, but has approached this Court for setting aside the list appended to Ext P13 and restore the list published earlier in 1962 by which the petitioner was ranked above respondents 4 to 8. 19. Two of the main contentions raised in, this writ petition are that (1) the service under Rule 11 (2) of the Madras State Judicial Service Rules which commenced so far as the petitioner is concerned, on 2-2-1955, must be reckoned for the purpose of seniority hi counting continuous service, and not merely the service from the date of regularisation of appointment which so far as the petitioner is concerned commenced only on 23-6-1955 and (2) that the period of training must also be counted for the purpose of seniority. The Central Government have clearly ruled that the non-regularised portion of the services of an incumbent allotted to Kerala State from Madras cannot be counted for determining the inter-state seniority of the allotted personal vis-a-vis their compeers in the State of Travancore-Cochin for deciding their rank as on 1-11-1956. It has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of the original appointment itself or from any subsequent date. This regularisation will have to be done by taking into account the number of vacancies and after considering the claims of the persons in the select list to the particular vacancy. When this is determined, a person appointed under Rule 11 (2) can get a date only of a vacancy that occurred after the vacancies which should be filled up by the persons whose names are mentioned above his in the list or those who should have been appointed earlier because of the rule of communal rotation have been filled up. From the date of that vacancy the services of that person appointed under Rule 11 (2) will be regularised. 22. The appointment under Rule 11 (2) is a temporary appointment and it is so stated in the rule itself. Appointment under Rule 11 (3) also is a temporary appointment though this can be even of persons who do not figure at all in any select list prepared after the selection by the Public Service Commission. A reading of the rule--Rule 11 (3) of the Madras State Judicial Service Rules--shows that this rule will be resorted to in cases of emergency. Suffice to say at this stage that service rendered in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of India, Ministry of Home Affairs Order No. 68/3/56-SR. II dated 31st October 1956, shall be finally allotted to the State of Kerala with effect from the 1st November, 1956. 24. Though this point has not been specifically taken in the original petition we requested the learned Advocate General who appeared for the State Government to make available to us the four orders passed by the Central Government dated 24-8-1960 as well as the schedules appended to three of those orders in original to find out whether the said Sethu Madhavan had been finally allotted to the State of Kerala. These were made available and we find that the said Sethu Madhavan has not been finally allotted to the State of Kerala. This being so, there can be no question of Sethu Madha-van's date, namely 1-7-1954 being allotted to the petitioner. Such allotment of date under what has come to be known as the K. L. M. principle which came into existence in the Travancore-Cochin State by an order No. S. 5-18375/49/C. S. dated 27-9-1950 referred to in page 248 of Important Orders issued by the Travancore-Cochin Government , cannot apply to the petitioner. We extract the relevant portion of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Therefore, four posts of District Magistrates, which were interchangeable with those of Sub Judges so far as the set up in the State of Madras was concerned, and to which Munsiffs in that area could normally and legitimately aspire for promotion, were lost to the Madras personnel allotted to the State of Kerala. This reservation has resulted in further harm to these personnel by virtue of provision made by framing rules under Article 234 of the Constitution for absorption of some at least of the personnel occupying the separate cadre into the civil judiciary. As an instance, the appointment of the 5th respondent in O. P. No. 2979 of 1966 as a District Judge, is relied on. (4) In integrating the Madras personnel with those of the Travancore-Cochin personnel, 4 persons who were officiating as Sub Judges in the State of Madras at the time of integration were also included in the list of Munsiffs, and these 4 persons being admittedly seniors to the petitioners in these original petitions and some others, while they were in Madras service, the petitioners had to surrender their, longer service as Munsiffs to these 4 persons who had lesser service as Mun-siffs by the application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee. By an order SI. 2-40451/56/PD dated 11-3-57, the State Government accepted the suggestions of the High Court for the equation of posts coming under the judicial service, the Integration Committee constituted by the Government having earlier considered the proposals of the High Court and having recommended that the suggestions of the High Court be accepted. On the basis of this order a notification dated 3rd June. 1958 was published in the Kerala Gazette publishing the order dated 27th May 1958 which is Ext. P7inO. P. No. 2979 of 1966. The relevant part of that order runs thus: After careful deliberation of all the factors they are now pleased to order that the posts in the two integrating units of the department will be equated as follows in partial modification of the orders issued in their proceedings of even number dated 11-3-1957. (The order already referred to). Travancore-Cochin Madras 1. District Judges--I Grade rs. 800-1000. District Judges--II Grade ₹ 1000--1800. 2. District Sessions Judge -- II Grade ₹ 500800. District Magistrates (SIC.) ₹ 500--700 plus special pay ₹ 50. 3. District Magistrates-- ₹ 500--800. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Munsiffs in the Travancore-Cochin area. If these aspects had been given due weight and had been taken into account as they should have been, the District Munsiffs in the State of Madras allotted to Kerala and some of whom were already drawing ₹ 500/- in the scale of ₹ 300-700 should not have been equated with the District Munsiffs of Travan-core-Cochin area but should have been equated at least with the Sub Judges in that area. This contention is of course controverted by the State as well as the Central Government in the affidavits that have been filed in these cases as also by some of the respondents who are Travancore-Cochin personnel. 30. That the main principle that has been accepted in the matter of equation of posts is functional parity is clear from the order dated 29-12-1956 (Ext. P2 in O. P. No. 2979 of 1966). The functional parity must be with reference to the nature, powers and responsibilities of the posts is also clear from the same order. This principle, settled by Ext. P2 order, cannot be said to be at variance with what is envisaged by Sub-section (5) of Section 115 of the States Reorganisation Act. In fact, it is not urged before us that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area of jurisdiction, scales of pay, etc. were due to historical, geographical and administrative reasons . . . .Equation of posts was effected having due regard to functional parity and consistent with the general principles accepted in this regard. 31. Regarding pecuniary jurisdiction, the 8th respondent in O. P. No. 2600 of 1966 has pointed out in paragraph 12 of his counter-affidavit that the Munsiffs in Devicolam and Shencotta in the Travancore-Cochin area were having pecuniary jurisdiction up to ₹ 5000/-. 32. The point has also been taken in the counter-affidavits that in integrating the Travancore-Cochin Munsiffs who were allotted to the State of Madras with the Madras personnel who were function-ing as District Munsiffs in the Madras State, the equation was effected on the identical basis of the Munsiffs of the Travancore-Cochin area being treated as equivalent to the Munsiffs in the Madras erea. This was admittedly done on the basis of Ext. P14 dated 17-7-1957 in O. P. No. 2709 of 1966 which settled the principles of integration in the Madras State. The relevant paragraph of that G. O. runs thus: 1) EQUATION OF POSTS In absorbing transferred officers into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led up exclusively by Malabar personnel on that date according to seniority. This is only for seniority and integration and will not entitle them to any arrears of pay on this account. 36. Representations were made by the Travancore-Cochin personnel against such reservation of posts on notional basis for the personnel allotted from the State of Madras. These were forwarded to the Central Government by the State Government and the Central Government after consulting the Central Advisory Committee expressed the view that there is no basis for reserving posts in the manner in which It has been done by the State Government by its order dated 27-5-1958. From the files made available to us it is seen that the Central Government have applied their mind to the question of reservation of posts and after following the procedure prescribed by the Act gave directions to the State Government We may refer to the explanatory note to letter No. 13/2-60-CAC dated 18th February 1960. In paragraph 13 of that note, this is what is- stated: The next point for consideration is the propriety of the action of the Kerala Government in notionally creating posts of District Judge, District Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an'core-Cochin area on the eve of the Act. There were four District Magistrates and 9 Sub Divisional Magistrates functioning in those capacities on 1-11-1956. They have been termed as Magistrates of executive origin. Before the separation of the executive from the judiciary which took place in the State of Travancore-Cochin in the year 1955 these Magistrates could aspire for promotion to various executive posts. After the separation this avenue to them was closed The High Court on the administrative side expressed the view that these persons cannot be integrated with the members of the civil judiciary. Some of them did not possess even a law degree. The State Government therefore reviewed their decision embodied in Ext. P7 in O. P. No. 2979 of 1966 dated 27-5-1958 that these persons should be integrated with the members of the civil judiciary and passed an order G. O. MS. 851 dated 24-9-1959 constituting a separate cadre outside the civil judiciary of 3 posts of District Magistrates and 8 posts of Sub Divisional Magistrates. The relevant part of that order runs thus: The High Court has now expressed the view that it will not be proper to equate the District Magistrates and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Magistrates were holding executive posts before the separation of the Judiciary. One of them it appears, does not possess a Law Degree. In Madras, on the other hand the District Magistrates were borne on the cadre of Sub Judges. Any attempt, therefore, to equate the posts of District Magistrates (Judicial) in Travancore-Cochin with corresponding posts in Madras would present difficulties. The Committee, therefore, agree with the proposal of the Kerala Government to omit from the equation three posts of District Magistrates and 8 posts of Sub Divisional Magistrates and to set apart the three posts of District Magistrates for promotion exclusively from the eight Sub Divisional Magistrates. This arrangement will last only till the 11 incumbents retire or are provided elsewhere. The Committee recommend that such of the present incumbents in this separate cadre as are qualified should be considered by the State Government and the High Court for promotion to posts in the Civil Judiciary. 40. It was on the above basis that provision was made in the order Ext, P11 in O. P. No. 2979 of 1966 dated 24-7-1961 in paragraph 4 as follows: Three posts' of District Magistrates and eig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt so advised because of the peculiar circumstances that were obtaining in the State resulting from what transpired before the Act. That the personnel holding the posts of District Magistrates and Sub-Divisional Magistrates could not be fairly integrated with the members of the civil judiciary as well as the District Magistrates (Judicial) who came from Madras which posts were inter-changeable with that of Sub Judges is evident from what has been stated in the order dated 24-9-1959 (Ext. P 21 in O. P. No. 2979 of 1966). In these circumstances it seems to us inevitable that there should be a separate cadre for these officers. It also seems to us to follow that at least the four places of the District Magistrates must be available for promotion for the Sub Divisional Magistrates as those places appear to be the only avenue open-to them for the betterment of their lot. That the creation of a separate cadre has had the approval of the Central Government and the Central Government have had the benefit of the recommendations of the Advisory Committee is seen from what we have already adverted to. The fact that if those places of District Magistrates in the Travancore-Cochin area were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es places on the date of integration and what has been done is only to apply the principle accepted by Ext P11 order in O. P. No. 2979 of 1966 to all the four District Magistrates that were functioning on the date of integration. The State Government has also stated in the affidavit that what was done was only to rectify the mistake committed in thinking that there were only 3 District Magistrates whereas in fact there were 4 (vide paragraph 14 of the counter-affidavit of the State of Kerala in O. P. No. 2709 of 1966). We see nothing wrong in this. 44. The further aspect remaining under this head of attack is about the framing of the rules for the absorption of the personnel that occupied the posts of District Magistrates and Sub Divisional Magistrates into the civil judiciary. This was done on 24-9-1959 by promulgating Ext. P27 in O. P. No. 2709 of 1966. This rule was further modified by Ext. P28 in O. P. No. 2709 of 1966 which was published on 11-2-1966. The main differences between these two sets of rules are that under the earlier rule the probation must be for a period of two years whereas under the later rule, the probation was to be as provided in the Kerala Judicial Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the civil judiciary who are governed by rules in the matter of promotion have been treated differently from the other set who form the other members of the same service. In such cases it is easy to come to the conclusion when there has been an unequal treatment between the two sets that there has been violation of Article 16 of the Constitution. Such is the case that was dealt with by the Punjab High Court in the decision in Brijlal Goswami v. State of Punjab, reported in AIR 1965 Punj 401. But when provision is made for inducting into the service fresh members which will affect all and every one in the service it is not possible to say that there has been discrimination affecting any particular set of members of the service. By inducting others they may no doubt be affected. But we do not consider Article 16 of the Constitution as guaranteeing that once a person has become a member of a service nothing will be done by the State Government to alter what the members of the service consider to be their chances of promotion according to the rules prevailing at the time of recruitment. If this be so, rules framed under Article 309 of the Constitution can never be altered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Constitution is specifically mentioned in the order passed. We therefore are; unable to accept the contention that these rules are violative of the Constitution and in so far as these rules have been pressed into service interference by this court is called for. 45. We may add that the only person singled out for attack is respondent No. 5 in O. P. No. 2979 of 1966. He was the only person who was recruited to the civil judicial service by applying these rules. Before that nobody was appointed and since then also nobody has yet been appointed. We have also pointed out that there are few remaining who have a chance of being considered for absorption. There are only two District Magistrates left and no Sub Divisional Magistrates. This Court will not be justified in interfering with what was done in the best interests of everybody concerned. 46. The 4th point raised, as we have grouped the contentions relates to the method adopted for showing the names of four persons, Sarvashree E. K. Moidu, P. Unnikrishna Kurup, V. M. Prabha-karan Nair and P. Kunhiraman Vydiar, who were all officiating Sub Judges in the State of Madras before the date of integration both in the list of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be assigned ranks in both substantive and officiating categories. Seniority was assigned to them in the officiating cadre with reference to their regular continuous service in their officiating cadre. Similarly, seniority was assigned to them in their substantive posts also without dislocating the seniority in their parent service. This action does not suffer from any illegality. 47. There is the authority of the Supreme Court in the decision in State of Raiasthan v. Ram Saran, reported in AIR 1964 SC 1361 that the holder of an officiating post has no legal right to continue in that post. If therefore exigencies of service required that he should be reverted he must find a place in the cadre in which he had a substantive lien. If the names of these four persons were not shown in the cadre of Munsiffs it will be impossible to work out their position in case of reversion. They will naturally be entitled to earlier promotions than the other Munsiffs who still remained as Munsiffs when they were functioning as Sub Judges. This means that they must be given their proper places and their ranks assigned in the cadre of Munsiffs. This is what has been done and this is in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckoned for determining the length of continuous service. This was not considered as part of judicial service by the Madras State Itself long before the integration. How it can now be trotted out as a ground for the purpose of integration is ununderstandable. 51. Some of the petitioners have contended that training period of Munsifls must be counted for determining their continuous service. This too has been negatived by the Central Government after consultation with the Central Advisory Committee and we do not think wrongly. We reject this contention as well. 52. These writ petitions fail and have to be dismissed. We do so. No costs. O. P. Nos. 2303, 2709 and 3057 of 1966 53. The point remaining for consideration arises out of the contentions urged by the petitioners-allottees from the State of Madras that the service rendered by them in the State of Madras before the reorganization of the States on appointment under Rule 11 (2) of the Madras State Judicial Service Rules should be counted for determining their continuous period of service for the purpose of integration with the Travancore-Cochin personnel also allotted to the State of Kerala. The inter-State seniority of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose. It was so stated, it appears, because of the communal G. O. which provided for reservation of posts for backward classes had been under challenge before the appointments were made. The principle of the communal G. O. was also applied in the matter of selection and appointment of Munsiffs is admitted. In fact one Ven-kataramana, a candidate who was chosen by the Public Service Commission and whose rank in the select list was higher than that of the two petitioners in O. P. Nos. 2709 and 3057 of 1966 was not appointed on 25-5-1951 because of the application of the principle of the communal G. O. The said Venkataramana did not take this lying down. He filed a petition under Article 32 of the Constitution before the Supreme Court and that petition was allowed. Consequently, the petitioner therein was appointed as a Munsiff on 5-10-1951. After the appointment of the said Venkataramana, the appointments of the two petitioners in O. P. Nos. 2709 and 3057 of 1966 were regularised as envisaged by Rule 20 of the Madras State Judicial Service Rules with effect from 6-10-1951. These facts which we have mentioned are discernible from the judgment of the Andhra Pradesh High Court in Y. Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Roy reported in AIR 1968 SC 850 at p. 852, would show that this letter enunciated certain principles. The one with which we are concerned in this case is about the reckoning of service and regarding that, the provision in that letter, is as follows: 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. 59. Almost the same words have been used in the order passed by the State Government on 29-12-1956 (vide paragraph 4 of Ext. P13 in O. P. No. 2709/ 1966). The only difference is instead of ' fortuitous the word used in Ext. P13 is emergency arrangement . We shall quote the relevant portion from Ext. P13: Length of continuous service, whether temporary or officiating, quasi-permanent or permanent in the equated grade (this should exclude periods for which an appointment is held in a purely stop-gap or emergency arrangement). Service on probation will also be counted. 60. When we look at Rule 11 (2) of the Madras State Judicial Service Rules, it will be seen that there is no use of the words stop-gap , emergency , or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrangement used in the communications and orders (letter dated 3-4-1957 and order dated 29-12-1956 already referred to) supposed to contain the principles for integration, a certain amount of uncertainty, not to mention confusion, resulted, giving rise to further correspondence, controversies, representations and appeals, followed by clarifications and further orders. It has become necessary to refer to these in view of the very elaborate arguments that have been advanced before us which included the contention that the Central Government did not know and was not told about the difference between emergency service and what is called temporary service under Rule 11 '(2) of the Madras State Judicial Service Rules, and that the directions as given by the Central Government were given in oblivion of this vital distinction. 62. The next order that was passed by the State Government which settled the question as to whether the service rendered under Rule 11 (2) must or must not be taken into account for the purpose of inter-State seniority is the order dated 16-8-1961 (Ext. R3 in O. P. No. 3057 of 1966). This order refers to four other orders, the earliest of which is the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advisory Committee regarding counting of emergency service on the representations received from the personnel of the Public Works Department and to say that, as the period of emergency service was not counted for purpose of seniority in the-former Madras State, the Government of India are tentatively of the view that it should not be counted for purposes of fixing inter-State seniority in the Kerala State also. The comments of the State Government in this regard may kindly be furnished. 65. The answer to this letter is seen-from Ext. R2 produced along with C. M. P. No. 9841 of 1968 in O. P. No. 3057 of 1966. By Ext. R2, the State Government informed the Central Government that in the view of the State Government no-modification of the decision embodied in the order dated 16-8-1961 is necessary. Ext. R2 is dated 25th January 1962 and this is the letter that the Central Government referred to in giving further directions as is seen from Ext. P32 in O. P. No. 2709 of 1966, a letter dated 1-3-1962. The relevant part of that letter is in-these terms: (ii) In respect of Madras personnel allotted to Kerala and who have only emergency service to their credit, such service need not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be decided the privilege of counting their emergency service by their allotment to Kerala if such service would have been regularised from the date of their emergency appointment and counted for inter-State seniority in integration on 1-11-1956 had they remained in Madras. The principle laid down by the Madras Government (Vide G. O. MS. 2184/Public (Judl) A, dated 17-7-1957 copy enclosed) so far as it relates to the counting of service for determining the inter-State seniority of Madras Officers and' those allotted from T-C to Madras on 111-1956 can be adopted for deciding the inter-State seniority of Madras and T-C. Officers in Kerala also on 1-11-1956. 69. This recommendation as far as we can see has' been fully accepted by the Central Government. This is seen from' Ext. P33, a letter dated 16-2-1963, addressed by the Central Government to the State Government. The only addition in that letter is the following: The Government of India would have no objection even to the principles, initially adopted by the State Government in their orders No. SI. 2-40451/56/PD daterf the 29th December 1956. and No. G. O. MS (P) 40451/SI. 2/56/PD dated the 2nd April 1958, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Government accepted this and passed the order Ext. R2 they were not acting on their own but they were carrying out the mandate of the Central Government. ' That they did not take into account the lack of objection of the Central Government will not invalidate the order nor make the decision contained in Ext R2, a decision of the State Government. The Central Government has no case in any of the counter-affidavits filed in any of these petitions that the State Government has gone beyond what has been directed by the Central Government or that they have acted against what is stated in Ext. P33. 72. The arguments specifically advanced by the petitioner himself in O. P. No. 2709 of 1966 and by counsel on behalf of the petitioner in 6. P. No: 3057 of 1966 that in so far as the services of those two petitioners from 26-5-1951 to 6-10-1951 have been counted for the purpose of increments by virtue of an order Ext. P6 in O. P. No. 2709/1966 as far as the petitioner therein is concerned, and by similar orders in the case of others, that service must be counted for the purpose of inter-State seniority by virtue of what is stated in Ext. P32 communication of the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illusory in view of the definite prejudicial stand they have taken and final orders passed on the prior representations and appeals. 76. In the above circumstances we are not satisfied that there has been any denial of an opportunity to state their case. We will not be justified in interfering with the final list on this basis. 77. Counsel for the petitioner in O. P. No. 2303 of 1966 made a further point that there is some inconsistency between the stand taken by the State Government in the counter-affidavit that has been filed in that petition and that what is-stated in Ext. P14 in O. P. No. 2709 of 1966. The passage that has been referred to from the affidavit is contained in paragraph 11 thereof and runs thus: Both in Travancore-Cochin and in Madras, service rendered in temporary (in the sense not regularj/provisional appointments were not counted for inter se seniority and based on the decisions of the Government of India service which did not count for seniority in the parent State has been excluded for inter-State seniority on 1-11-1956 in the case of both Travancore-Cochin and Madras Officers. 78. It is urged that this assertion is clearly against what is cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution. Decisions whether quasi-judicial or otherwise are not normally interfered with unless they be decisions taken without jurisdiction or decisions which are perverse or arbitrary or at least which are palpably erroneous. Can it be said that when service which was not counted for the purpose of inter se seniority in Madras State was not counted for the purpose of inter-State seniority in the matter of integration there has been any palpable error committed by the Central Government, justifying interference by this Court in proceedings under Article 226 of the Constitution? 82. To answer the above question it is necessary to bear the following factors in mind. When a person who is not entitled to immediate appointment is appointed under Rule 11 (2) and thus gains service under that rule, he is not given the benefit of that service because the person who should have been appointed was denied that place. In effect, therefore, if not actually, the service rendered by the appointee under Rule 11 (2) goes to the benefit of the person who should have been appointed and such person becomes senior to the appointee under Rule 11 (2), notwithstanding the earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eive that there has been any palpable error in the directions given by the Central Government. We are also unable to spell out any unfair and inequitable treatment violative of Sub-section (5) of Section 115 of the Act, warranting interference by this Court in proceedings under Article 226 o the Constitution. 84. The petitioner in O. P. No. 2709 of 1966 raised two further points. According to him the Central Government was not consulted before the final list appended to Ext. P31 in that petition was drawn up. The final list is based on the orders read while passing Ext. P31 is clear from that order itself. We have elaborately referred to the relevant orders that have been read. These orders, we have also seen, have been passed on the directions of the Central Government. Those directions pertain to the particular service with which we are concerned in these petitions is equally clear. It is those principles that have been applied in drawing up the final list seems to be beyond doubt. In these circumstances it cannot be said that the final list has been drawn up not in accordance with the directions of the Central Government. 85. It was further suggested that the final list mu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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