STATE OF KERALA Vs. JOHN

JUDGEMENT

(1.) THESE appeals arise from the judgment of Isaac,J .,disposing of two petitions,O.P.No.4786 of 1968 and O.P.No.1114 of 1969 by two separate judgments,both dated 4th June,1970.

(2.) THE main question or perhaps the only question arising in Writ Appeal Nos.147 and 149 of 1970 which are appeals taken by the State Government,the 1st respondent and the 5th respondent respectively in O.P.No.4786 of 1968 is about the principles to be adopted in fixing the inter se seniority of the petitioner and respondents 3,4,5 and 6 in that petition.This question had been the subject -matter of several proceedings before this Court by the petitioner in O.P.No.4786 of 1968 and by other persons and turns on the effect of sub -section(7)of section 115 of the States Reorganisation Act,1956 with particular reference to the proviso to that sub -section.We shall read this sub -section and the proviso before we state the facts: "115(7)Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub­section(1)or sub -section(2)shall not be varied to his disadvantage except with the previous approval of the Central Government."

(3.) DURING the pendency of the appeals that were dis­posed of by the above judgment,the State Government proceeded to integrate the persons allotted to the Kerala State from the Travancore -Cochin State as also from the Madras State and an order Ext.R -1 produced by the 1st respondent dated 11th March 1966 was passed by the Government.On the basis of Ext.R -1,Ext.P -11 order was passed promoting the 3rd respondent as Chief Engineer.He was then on other duty and was allowed to continue there.The 4th respondent,the next senior according to Ext.R -1,was therefore promoted and appointed as Chief Engineer by the very same order Ext.P -11.The prayer in the petition,O.P.No.4786 of 1968 is to set aside Ext.P -11 and for a declaration that respondents 3 to 5 are juniors to the petitioner.The petitioner in the Original Petition also obtained an order of injunction from this Court restraining the State Government from appointing persons to the post of Chief Engineer on the basis of Ext.R -1.In the mean­time the 3rd respondent retired and so did the 4th respond­ent.The Chief Engineer's post having thus fallen vacant,the State Government approached this Court by C.M.P.No.3467 of 1970 and prayed for vacating the interim order of injunction or to give a direction permitting the appoint­ment of the seniormost in Ext.R -1 list without prejudice to the contentions of the petitioner in the Original Petition and subject to the decision therein.This latter prayer was allowed by this Court.Accordingly the 5th respondent has been appointed after the order of this Court on the same Civil Miscellaneous Petition on 11th March 1970 and the 5th respondent is now functioning as Chief Engineer.