V K BALAKRISHNAN NAIR Vs. STATE OF MADRAS

JUDGEMENT

(1.) THIS is an appeal against the judgment of Rajagopalan J. in W. P. No 36 of 1957, filed by the appellant in the following circumstances, The appellant was appointed in 1941 as a lower division clerk in the office of the Hindu Religious Endowments board at Madras. In July 1944 he was transferred and posted as lower division inspector In the office of the Assistant Commissioner, Hindu Religious Endowments board, Kozikode, South Malabar. In September 1951 when the Hindu Religious endowments Board was abolished and in its stead the department of Hindu religious and Charitable Endowments came into existence, he became a permanent lower division clerk acting as upper division clerk in the department. He then served in many posts till he was eventually posted as acting upper division inspector under the Assistant Commissioner, Palghat by an order dated 1st June 1956. On 16th August 1956 he was placed under suspension. Charges of misconduct were framed against him and the tribunal for disciplinary proceedings, madras, conducted an enquiry into the charges. On 29th October 1956 he was served with an order of the Government of Madras, dated 13th October 1956, asking him to show cause why he should not be removed from service. On receipt of this, he requested the Government of Madras to permit him to go through the relevant papers to enable him to submit an explanation. This permission was refused and he was asked to submit his explanation expeditiously. On 2nd January 1957, relying upon the fact on 1st November 1956 the new State of Kerala was formed under the States Reorganisation Act, he presented a petition to the government of Madras-submitting that it had no jurisdiction to take any action in his case and that the entire matter must be transferred to the Kerala for action by them. On 9th January 1957 he wad served with the order of the Madras government dated 10th December 1956 informing him that he had not been allotted to the Kerala State and that he continued to be borne on the cadre of the madras State. Apprehending that the Madras Government may take further action against him, he filed the writ petition out of which this appeal arises, for the issue of a writ of prohibition restraining the State of Madras from taking any further action. The writ petition was heard by Rajagopalan J. and dismissed in limine, without issue of notice to the State. Hence this appeal.

(2.) THE appellant founded his petition on the provisions of the States reorganisation Act and in particular on Section 116. As this section and Section 115 of the Act have a material bearing on the point in issue, we give below the material portion of these two sections: section 115 (2): Every person 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 ii 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. S. 116 (1): Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new part A State or Part C state shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new Part A state or Part C State in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post Or office by the Government of, or other appropriate authority, in such State, or by the Central Government or other appropriate authority in such part C State, as the case may be. The contention of the appellant as set out in his affidavit filed in support of the writ petition is that by virtue of the provisions of Section 116 (1) of the Act, he, who was holding the post of permanent lower division clerk in Malabar, automatically became a civil servant in the service of the Keraia State on 1st November 1958 and therefore the Government of Madras could not take any disciplinary proceedings against him. This contention was rejected by Rajagopalan J. on the following reasoning: