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PETITIONER: VASANT KRISHNARAO PATURKAR & ANR.

       Vs.

RESPONDENT: D. R. MAJRAMKAR & OTHERS

DATE OF JUDGMENT08/04/1974

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. KHANNA, HANS RAJ

CITATION:  1974 AIR 1502            1974 SCR  (3) 857  1975 SCC  (3) 162

ACT: States’  Reorganisation Act, 1956--S. 115  and  117--Whether High Court can decide issues of gradation seniority etc.  of officers  allotted  to the bilingual state of  Bombay  after reorganisation of States.

HEADNOTE: The appellants and the first 19 respondents. and respondents 22  to 24 are the employees in the Agriculture Dept. of  the State of Maharashtra following reorganisation of states. Respondents 1 to 19 were the original petitioners in  S.C.A. No.   1354/70.    They   were   officers   of   the   former Hyderabad--State.   They prayed in their application  for  a writ to set aside the Bombay Government’s Resolutions  dated 17th  February  1958 and 16th May 1969 and  the  provisional gradation  List  of 27th September 1969  and  the  Promotion orders  of  5th and 6th June 1970  and  other  consequential reliefs. The Bombay High Court disposed of the application on  merits in  favour of the appellants.  The orders of the High  Court affected the interests of the present appellants. Before the Nagpur Bench of the Bombay High Court,  appellant No.  1  and  three  other  officers  lodged  an  application impleading the State of Maharashtra and 88 other respondents including the present respondent 1 to 19.  Respondents 1  to 19  and others contested the application before  the  Nagpur bench  unsuccessfully.   The Nagpur bench allowed  the  writ application  and  quashed the resolution of  the  Government dated  9-9-1960 and combined Seniority List of  22-8-62  and quashed  the  order  of absorption of  the  petitioners  and respondents 3 to 89. The   respondents,  who  were  Agricultural  officers   from Hyderabad  Region, Preferred an appeal against the  judgment of  the  Nagpur High Court before the Supreme  Court.   They were, allowed to withdraw the same without prejudice to  all parties  affected to make representations to the  Government in  accordance with 1 1 5 of the States  Reorganisation  Act 1956. The  Government of Maharashtra made a new gradation list  on 27-9-69   and  allowed  certain  consequential   orders   of promotion on 5th and 6th June, 1970.  This, therefore led to the Special Civil Application No. 1354 of 70 at the instance

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of respondents 1 to 19. The  appellant  and another person had  also  filed  Special Civil  Application  No.  1126/71 in  the  Nagpur  Bench  for quashing  the  resolution of Bombay Government of  16th  May 1969  on certain grounds.  That matter is still  pending  in the Nagpur Bench.  The respondents 1 to 19 were impleaded as respondents  in that application but they-did not  file  any affidavits  in support of their case.  When the matter  came up for hearing, the appellants knew that another petition in the  same  subject was already decided by  the  Bombay  High Court.   The appellants took immediate steps in  the  Bombay High  Court  but  failed to obtain  any  favourable  orders. although they prayed for rehearing of the writ petition. The  problem  is  a  difficult  one  to  decide   gradation, seniority  etc.  when  officers of 3  different  States  are alloted  to  the  new bilingual state of  Bombay  under  the provisions of the States Reorganisation Act.  Setting  aside the impugned judgment and order of the Bombay High Court and directing  restoration of the Special Civil Application  No. 1354/70 and disposal of the same in accordance with law,  HELD  : (1) There is sufficient guideline in Part X of  the States Reorganisation Act 1956 and also in Part VIII of  the Bombay Reorganisation Act 1960 858   that the Government of India is the final authority in the matter of division and integration of services among the new states  to  ensure  a fair and equitable  treatment  to  all persons  affected  by the  reorganisation  including  proper consideration  of  any  representation  made  by   concerned persons.  further  it  is  well  settled  that  the  Central Government  under See, 115 of the Act has to  determine  the principles  governing equation of posts and  prepare  common gradation  lists by integration of services and in doing  so to  ensure  fair  and equitable  treatment  to  all  persons concerned. [860 H; 861 A-B] D.Rajian  Raj and Ors. v. Union of India &  Ors.   A.I.R. 1974 S.C. 457, N. SubbaRao  etc, v. Union of India &  Ors. [1972] 2 S.C.C. 862; and Union of Indiaand another v. P. K. Roy & Ors. [1968] 2 S.C.R. 186, referred to. (ii)The High Court cannot clothe upon itself the  authority for  performing  the functions which  are  specifically  and expressly intended to be the duty of the Central  Government under  the Act.  Therefore, the High Court was not right  in directing  the State Government to do that which  under  the provisions  of the Act is within the domain of  the  Central Government and secondly, in fixing a ’lime limit for  action and if the same is exceeded, directing an automatic entitle- ment  to  the second relief as to equation,  absorption  and fixation of seniority as prayed for by respondents 1 to  19. [861 D] (111)In  the  present  case, although  the  High  Court observed that there, was sufficient cause for rehearing  the special  Civil application; it wrongfully did not  give  any opportunity to the petitioners and the State of  Maharashtra to canvass their respective points of view against the  writ petition.   Under  the  circumstances,  this  Court  directs rehearing of the special civil application no. 1354/70 after giving opportunities to all the parties concerned. [862 C]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION :-Civil Appeal  No.  1227  of 1972. Appeal  by special leave from the judgment and  order  dated

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the  9th December, 1971 of the Bombay High Court in  Special Civil Application No. 1354 of 1970. M.   N..  Pliadke,  Naunit  Lal and Lalita  Kohli,  for  the appellant. S.   C.  Agarwala,  K.  K.  Singhvi,  R.  K.  Garo,  S.   S. Bhattnagar and Y.   J. Francis, for respondent Nos. 10 & 14. M. C. Bhandare and M. N. Shroff, for respondent Nos. 20--24. The Judgment of the Court was delivered by- GOSWAMI, J.-This appeal by special leave is directed against the  judgment of the High Court of Bombay of  9th  December, 1971, in Special Civil Application (S.C.A.) No. 1354 of 1970 under  Article 226 of the Constitution.  The appellants  and the first nineteen respondents and respondents 22 to 24  are at  present the employees in the Agriculture  Department  of the State of Maharashtra following reorganisation of  States on 1st November, 1956. Respondents 1 to 19 were the original petitioners in  S.C.A. No.  1354  of  1970.  They were  officers  from  the  former Hyderabad  State  piior to the  States  Reorganisation  Act, 1956,  (briefly called the Act).  They prayed in their  said application for a writ to set aside the Bombay  Government’s Resolutions  of 17th February, 1958 and 16th May,  1969  and the  provisional gradation list of 27th September, 1969  and the promotion orders of 5th and 6th June, 1970  859 and other consequential reliefs.  They had impleaded in  the said  application five respondents, the first two being  the State  of  Maharashtra  and the  Director  of  Agriculture,’ Maharashtra  and  the remaining three respondents  were  the three  Agricultural Officers impleaded in  a  representative capacity  by leave of the High Court under order 1, rule  8, Civil  Procedure Code.  These respondents (Nos. 3 to 5)  did not  ;appear to contest the. application in the Bombay  High Court  and  it is alleged that they had no interest  in  the matter and were in collusion with the appellants.  Even  the first two respondents, namely, the State of Maharashtra  and the  Director  of Agriculture, went by default,  although  a belated  prayer  to enter appearance had been  made  through counsel  on  behalf  of  the  State  of  Maharashtra   after commencement  of  arguments, on the day  of  final  hearing, which  ’was,  however, rejected by the.   High  Court.   The application was then disposed of, ex parte, on merits by the High Court in favour of the applicants.  It is not  disputed that  the  order  of the High  Court  directly  affects  the interests  of the present appellants, who ’are  Agricultural Officers from the Madhya Pradesh region. From Bombay we may now turn to the Nagpur Bench of the  said High  Court.   There  the appellant No. 1  and  three  other Agricultural Officers lodged a Special Civil Application No. 361 of 1964 impleading the State of Maharashtra and 88 other respondents,  including  the present respondents  1  to  19. Respondents  1  to 19 and others contested  the  application before the Nagpur Bench unsuccessfully.  The Nagpur Bench of the High Court allowed the Writ application by its  judgment and order dated 6th December, 1967 and the operative part of the same may be quoted.               "Accordingly, we allow the petition and  quash               the  resolution of the Government  dated  9-9-               1960 and combined seniority list issued by the               Government   on  22-8-1962.   If   the   State               Government  wants to alter the basis of  equa-               tion   originally  fixed  on   17-2-1958,   an               opportunity to make representation against the               proposed  alteration  has to be given  to  the               persons  likely  to be  affected.   The  State

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                           Government will now take an appropriat e action.               The  neces sary correspondence of quashing  of               these  two  orders is  that  the  intermediate               order  of absorption which is  necessary  step               after  inter se seniority and  gradation  list               can  be  compiled  is  also  to  be   quashed.               Accordingly, we quash the order of absorption,               so  far as these petitioners  and  respondents               No.  3  to  89  are  concerned,  dated   11.5.               1962. . . . . The   respondents,  who  were  Agricultural  Officers   from Hyderabad region,, preferred an appeal against the  judgment of  the Nagpur Bench being No. 1366 of 1968 in  this  Court. They  were, however, allowed by this Court on 23rd  January, 1969, to withdraw the same "without prejudice to all parties affected  to  make  representations  to  the  Government  in accordance  with  section 115 of the  States  Reorganisation Act,. 1956" 860 After  the above order of this Court, it is said  that  many Agricultural Officers made representations to the Government of  India under section 115 of the Act.  The  Government  of Maharashtra   passed  a  Resolution  of  16th   May,   1969, purporting  to be an order giving new equation of  posts  in the   Agricultural  Department  in  pursuance  of  which   a gradation  list  was  made on 27th  September,  1969.   Then followed  certain consequential orders of promotion  of  5th and  6th June, 1970.  This, as already noticed, led  to  the Special  Civil Application No. 1354 of 1970 at the  instance of  respondents,  1  to 19 and the operative  part  of  this impugned  order of 9th December, 1971, is in  the  following terms :-                "For  the reasons stated in the  accompanying               judgment, the Court makes absolute with  costs               the rule granted by it on 30.6.70 in terms  of               the  prayer  (a) of the petition.   The  Court               further directs that if respondent No. 1 fails               to  decide the question of equation  of  posts               held   by  the  petitioners  in   the   former               Hyderabad  State in accordance with  law,  and               the observations in this Judgment within three               months  from 9.12.71, Respondent No.  1  shall               equate the posts of Agricultural Assistant  of               the  former Hyderabad State in the  scale  of’               Rs.  176-300  with the posts  of  Agricultural               Officer, Grade I of the former Bombay State in               the scale of Rs. 210-10-300 and to absorb  the               petitioners and to fix their seniority on that               basis with effect from the 1st day of November               1956". . . The  appellant  and another person had  also  filed  Special Civil  Application No. 1126 of 1971 in the Nagpur Bench  for quashing  the  Resolution of the Bombay Government  of  16th May, 1969, on certain grounds.  That matter is still pending in the Nagpur Bench.  The respondents 1 to 19 were impleaded as  respondents  in that application and although  they  had been  served,  they did not file any return  when  the  said application  came up for hearing at Nagpur on 2nd  February, 1972.   The learned Government Advocate, however,  mentioned to the court that ’another petition on the same subject  had already been decided by the Bombay High Court.  It. is  said that  this  was the first time when the appellants  came  to know of the impugned judgment and took immediately steps  in the  Bombay  High  Court  to set aside  the  order  and  for

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rehearing   the  ’writ  petition,  but  failed   to   obtain favourable orders. The  problem  is indeed ticklish  and  sensitive  concerning integration,   absorption,   gradation   and   fixation   of appropriate seniority of the officers throwing by act of the State  their  common lot from different areas,  namely,  the former  State of Madhya Pradesh, former State  of  Hyderabad and the former State of Bombay allotted to the new bilingual State   of  Bombay  under  the  provisions  of  the   States Reorganisation  Act.   It is, however, clear that  there  is sufficient guideline in Part X of the States  Reorganisation Act,  1956  as  also  later  in  Part  VIII  of  the  Bombay Reorganisation Act 1960 and,it is served for the  Government of India, advisedly, to be the final authority in the matter of division and integration of services among 861 the  new States to ensure a fair and equitable treatment  to all Persons affected by the reorganisation including  proper consideration  of  any  representation  made  by   concerned persons.  (See section 11,5 and section 117 of the  Act  and sections 81 and 83 of the Bombay Reorganisation Act, 1960). It is well settled that the Central Government under section 115  of  the Act has to determine the  principles  governing equation  of  posts and prepare common  gradation  lists  by integration  of services and in doing so to ensure fair  and equitable  treatment to all persons concerned.  The  Central Government  is  also required to give opportunities  to  the parties  affected  to make their  representations.  (See  D. Rajian Raj & Others v. Union of India & others(1); N.  Subba Rao etc. v. Union of India and Others(2) and Union of  India & Anr. v. P. K. Roy & Ors.(3) ). The  High Court cannot clothe upon itself the authority  for performing   the  functions  which  are   specifically   and expressly  intended  to be the obligation and  duty  of  the Central  Government  under  the Act.   The  High  Court  is, therefore. not right in two matters namely, in directing the State  Government to do that which under the, provisions  of the  Act is within the domain of the Central Government  and secondly in fixing a time limit for action and, if the  same is  exceeded,  directing art automatic  entitlement  to  the second  relief  as to equation, absorption and  fixation  of seniority  is prayed for by respondents 1 to 19.  This  view of  the.High  Court  is clearly erroneous  in  view  of  the provisions of the Act. That, however, does not dispose of this matter.  Mr. Phadke, learned counsel for the appellants, raises several questions before  US.  Firstly, that the Division Bench of  the,  High Court  could not sit ill appeal against the  Division  Bench decision  of  the  Nagpur  Bench which  is  binding  on  the respondents,  1  to  19.   Secondly,  that  there  is  clear violation of the principles of natural justice in  disposing of the writ petition by the High Court, ex parte, and in not reviewing  its order when sufficient cause was shown by  the appellants herein.  Thirdly, that the High Court should  not have  allowed the application under order 1, rule  8,  Civil Procedure  Code,  and  should have  insisted  upon  personal service  of the rule nisi on the affected petitioners  in  a service matter of such implications. Mr. Bhandare, learned counsel for the State of  Maharashtra, also, inter alia, took the point that the Central Government was  a  necessary party and the petition  should  have  been dismissed  by  the  High  Court  for  non-joinder  of   that Government. It  is  not necessary for us to go into these  questions  in view  of  the High Court’s order of December  24,  1971,  in

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Civil  Application  No.  3261  of  1971,  of  the  State  of Maharashtra and the Director of (1) A.I.R. 1974 SC 457-1973 (1) SCC 61 (2) 1972 (2) S.C.C. 82 (3)  [1968] (2) SCR 186. 862 Agriculture  praying for permission to file an affidavit  in reply  to the writ petition and for contesting the  petition on  merits.  The High Court observed "’we are  satisfied  on reading these affidavits that there was sufficient cause for rehearing the Special Civil Application", but on perusal  of the  affidavit  in  re and hearing  counsel  for  the  State rejected  the said petition.  The High Court also  dismissed the   petitioners’  application  for  rehearing   the   writ application. We  are not satisfied that the High Court was right  in  not allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before,  it against  the  writ  application, particularly  so  when  the matter  had been heard in a representative writ  application and  not  one  of the actually  affected  persons  had  been impleaded as a respondent even to represent their  category. The High Court itself observed, as noticed above, "there was sufficient cause for rehearing".  Without, therefore,  going into  the various points raised before us, we set aside  the impugned judgment and order of the Bombay High Court of  9th December,  1971 and direct restoration of the Special  Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to  all the parties concerned.  We further direct that respondents 1 to  19  shall take steps in the High Court  to  implead  the Central Government as well as the present appellants and all other  officers affected by the orders sought to be  quashed in the Special Civil Application No. 1354 of 1970 The  appeal is allowed on the terms indicated above.   There will be no order as to costs in this appeal. S.C. Appeal allowed. 863