G APPUKKUTTAN PILLAI Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS writ petition has been ordered to be placed before a Full Bench as it raises an important question as to the nature of the power exercised by the Central government in the matter of integration of services in the States. In M. A. Jaleel v. State of Mysore, AIR 1961 Mys 210, a Division Bench of the Mysore High Court took the view that the power of the Central Government in the matter of integration of services was an exclusive original power. There were observations in a different strain made by one of us (Raman Nayar J.) in Kunhi Krishnan Nambiyar v. State of Kerala, 1964 Ker LT 704 = AIR 1965 Ker 84 (FB ). In this latter case the mysore decision was not noticed, nor were the provisions of Article 4 of the constitution. In view of all this our learned brother Mathew J. felt that the question should be decided by a Full Bench.

(2.) THE petitioner was appointed Municipal Commissioner in the Travancore State in the year 1945 for a term of three years, renewed in 1948, and again in 1951, for a further term of three years on each occasion. By the time of the last renewal the travancore-Cochin State had been formed by the integration of the States of travancore and Cochin. There were no rules governing the appointment of municipal Commissioners in the Travancore-State. The Travancore-Cochin government framed rules dated 8-6-1953 relating to the conditions of services of municipal Commissioners. Rule 1 constituted a cadre of Municipal Commissioners consisting of 25 officers divided into five grades, the 1st Grade on a scale of pay of rs. 350-20-450 and the IInd Grade on a scale of pay of Rs. 275-10-325. It is unnecessary to notice the scales of the remaining grades. Rule 2 provided that ordinarily a first Grade Officer should be posted as Commissioner of the corporation of Trivandrum and Officers on higher scales of pay as Commissioners of Municipalities having larger revenue receipts. Rule 3 provided that the Municipal Commissioners shall be in service of the government, shall belong to a separate cadre, and shall not be ordinarily entitled to transfer or to inter-changeability with other services under the Government. Rule 5 provided for making appointments by direct recruitment and by promotion or transfer of persons already in Municipal Service, and further provided that the then Municipal Commissioners (like the petitioner) recruited to the cadre otherwise from Government service, may be treated to be substantive in their respective posts from the dates of their appointments as such. According to Rule 4 appointment to the cadre of Municipal Commissioners shall ordinarily be in the last grade, promotion to the higher posts being made from the next lower grade on considerations of past records and not merely on seniority. The petitioner was selected for appointment to the 1st Grade on 25-4-1956 and posted as commissioner of the Corporation of Trivandrum, for a period of one year. The trivandrum City Municipal Act specifies the post of the Municipal Commissioner of the Corporation of Trivandrum as ft tenure post. The salary scale of the 1st Grade municipal Commissioners in the Travancore-Cochin area was revised on 23-111956 (after the reorganisation of States) with effect from 1-4-1955 fixing the salary scale of 1st Grade Commissioner as Rs. 450-600. The necessary legislative amendments to the Trivandrum. City Municipal Act and the District Municipalities Act, removing the provision imposing a ceiling on the salary of Municipal Commissioners were passed only on 30-10-1956 and the revised scale was implemented from 23-11-1956, though with effect from 1-41955. The petitioner was confirmed in the post of Commissioner. Corporation of trivandrum with effect from 25-4-1956 by Ext. P8 order dated 12-8-1960. Ext. P9 g. O. No. 1837/la, dated 27-12-1955 of the Government of Madras will show the constitution of two separate services for Municipal Commissioners, viz. , the Madras municipal Commissioners' Service, and the Municipal Commissioners' Subordinate service. The former was to consist of one special grade post at Madurai on Rs. 800-50-900, three selection grade posts at Salem, Coimbatore and Thiruchirapalli, fifteen 1st Grade posts on Rs. 300-25-500, and eighteen second grade posts on rs. 200-10-300. The latter service was to consist of 24 IIIrd Grade Commissioners on Rs. 150-5-200.

(3.) THE reorganisation of States took place, on 1-11-1956 and certain Madras personnel (among them Respondents 3 and 4) were allotted and stood transferred to the Kerala State. By Ext. P3 G. O. dated 30-10-1957, the cadre strength of municipal Commissioners in the Kerala State as on 1-11-1956 was fixed at 27, of which one was to be in the 1st grade on Rs. 400-600. This was revised by Ex. P3 g. O. , dated 22-4-1958, by which, while maintaining the carde strength at 27, one selection post on Rs. 450-600 and eight 1st grade posts on Rs. 300-500 were sanctioned as on 1-11-1956. Ext. P1 dated 18-4-1958 is a copy of the integration order of the Government of Kerala equating the posts of Municipal Commissioners, in the Tra-vancore-Cochin area with the posts in Madras. Municipal Commissioners on Rs. 300-500 in Travancore-Cochin were equated with Municipal Commissioners on the same scale in Madras. According to the then prevailing scales of pay this meant that the IInd Grade commissioners of Travancore-Cochin were equated with the 1st Grade commissioners of Madras, with the result that the petitioner as the only 1st Grade commissioner of Travancore-Cochin, stood outside the equation and above his compeer in Madras. Respondents 3 and 4 and other allottees from Madras filed "appeal petitions" against Ext. P 1 G. O. These were considered by the Advisory committee constituted by the Government of India under Section 115 of the states Reorganisation Act, and the Government of India passed final orders directing that the posts of Municipal Commissioners of Travancore-Cochin and madras in the various grades, should be equated as below: travancore-Cochin Madras 1st Grade Rs. 350-450. 1st Grade Rs. 300-500. IInd Grade Rs. 275-325. IInd Grade Rs. 200-300. IIIrd Grade Rs. 225-275. IIIrd Grade Rs. 150-200. IVth Grade Rs. 175-275. Vth Grade Rs. 150-175. (Vide Ext. P 4.)This meant that the post of 1st Grade Municipal Commissioner, travancore-Cochin held by the petitioner on the relevant date was equated with that of the 1st Grade Municipal Commissioner Madras, held by Respondents 3 and 4, and since seniority was to be determined by length of continuous service in the equated posts, Respondents 3 and 4 who had longer continuous service got seniority over the petitioner. Accordingly a preliminary gradation list, (Ext. P5), was prepared and published in the Kerala Gazette dated 17th April 1962, showing 3rd and 4th respondents as seniors to the petitioner. This writ petition proceeds on the footing that petitioner was, at the time of Ext. P5, in England on deputation for training and that after his return, he filed Ext. P6 representation against the list which was rejected--as he was informed by Ext. P7 memo. It is on this basis namely, that the favourable equation made by the state Government was upset to his prejudice, without giving him an opportunity of being heard, and that his representation Ext. P6, was not considered on the merits, that the petitioner has sought to quash Ext. P4 order and Ext. P5 list. But it was pointed out--though at a somewhat late stage of the arguments--that Ext. P4 order was published in the Kerala gazette dated 15-12-1959, and objections invited, that the petitioner filed a representation dated 8-2-1960, against Ext. P4 order which was rejected after due consideration of the points raised, by the Central government's order dated 8-7-1960, communicated to the petitioner by memo dated 25-11-1960. These were read out from the files by the government Pleader. (See also paras 22, 29 and 30 of the 2nd respondent's counter affidavit ). It is apparent that the petitioner has not made a full and true disclosure of the facts but has, in order to put forward his case of a violation of the principles of natural justice chosen to suppress his representation against Ext. P4 and the adverse order thereon. On that one ground alone this writ petition is liable to be dismissed.