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PETITIONER: P. CHITHARANJA MENON & ORS.

       Vs.

RESPONDENT: A. BALAKRISHNAN & ORS

DATE OF JUDGMENT25/04/1977

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. BEG, M. HAMEEDULLAH (CJ) GUPTA, A.C.

CITATION:  1977 AIR 1720            1977 SCR  (3) 687  1977 SCC  (3) 255

ACT:             Service matter--Promotions made in 1962--Writ  petitions         filed in 1972--If could be entertained.

HEADNOTE:             On May 15, 1961 the State Government passed orders  (Ex.         PI)   that   all Panchayat Officers  functioning  under  the         Travancore Cochin Panchayats  Act, 1950 and Panchayat Execu-         tive  Officers functioning under the  Madras   Village  Pan-         chayats  Act, 1951 as on December 31, 1961 who  continue  to         hold their appointments when the Kerala Panchayat Act,  1960         came  into force would  be absorbed as  Panchayat  Executive         Officers under the new Panchayats.  The order also  provided         that  the staff of the Malabar District Board shall  be  ab-         sorbed as Panchayat Executive Officers in suitable grades.             On  the recommendation of the State Public Service  Com-         mission the State Government appointed 17 Panchayat Officers         in  a  higher grade  by  an  order dated December  28,  1961         (Ex. P8) and the officer joined their posts  between  Decem-         ber 30, 1961 and January 2, 1962.  To fill up the  resulting         vacancies  17 of this Panchayat Executive Officers who  were         in  Grade  II  (respondents 3 to 18)  were  appointed.   The         appellants  were  appointed as Executive  Officers   on  the         Grade  I,  as  and from January 1,  1962.  The  respondents’         representation   to  the  Government   that   they    should         be  appointed with effect from December 28, 1961,  that  is,         the  date on  which  the public Service Commission  communi-         cated their appointment was rejected by the State Government         (Ex. P10) on the ground that the vacancies arose only on the         dates stated in that order commencing from December 30, 1961         and  ending with January 2, 1962 and that  the  appointments         can  only  be on the  occurrence  of the  vacancies.   In  a         petition  under Art. 226 of the Constitution the High  Court         directed that fresh lists be prepared.         Allowing the appeal,         HELD: The respondents are not entitled to the reliefs prayed         for by them in the writ petitions. [691 F]         The  appellants  were promoted to a higher post  before  the         respondents  were integrated into the Government  service.on         January  1,  1962.  Throughout,  the  appellants  have  been         treated  as  occupying a higher post  and  respondents  much

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       lower  post.   Though the promotion of  the  appellants  was         before  January  1, 1962 and was confirmed by various orders         of  the Government the respondents did not choose  to  chal-         lenge the orders till 1972. [689 G]             There  is no ground for challenging Ex. P10  order.   It         refers to the G.O. of February 13, 1962 by which 16 respond-         ents  in the writ petition were promoted as Executive  Offi-         cers  Grade  I  on the advice of the  State  Public  Service         Commission.  Their promotion having been ordered on February         13,   1962,   without challenging that  order  a  subsequent         order  which determined the date of  their  commencement  of         service cannot be challenged.  [689 E-F]             There is no merit in the respondents’ contention that if         the  vacancies  in which the appellants and other  Panchayat         Executive  Officers  were  absorbed arose after  January  1,         1962  the  respondents would be entitled  to  be  integrated         along  with the Panchayat Executive Officers and since  they         were  drawing the  same pay they ought to have been given an         equal ranking.  The appointments of the appellants and other         Panchayat  Executive Officers  were  made   before  December         31,  1961  and as the integration was to  take  effect  from         January 1         688         1962 they cannot have any grievance.  Further, the  respond-         ents   were  not equated with the appellants and other  Pan-         chayat Executive Officers when they were integrated from the         District Board Service.  [690 F-G]

JUDGMENT:         CIVIL APPELLATE JURISDICTION: C.A. No. 1547 of 1975.             (Appeal  by Special Leave from the Judgment  and   Order         dated  the  24-1-1974 of the Kerala High Court in  O.P.  No.         5566/72)               Y.S. Chitale, A. S. Nambiar, for the appellant.               K, T. Harindranath, K.R. Nambiar, for respondents Nos.         1 3 and 4.                T.S. Krishnamoorthy Iyer, N. Sudhakaran, for respond-         ents Nos. 5 & 6.            The Judgment of the Court was delivered by             KAILASAM, J.This appeal is by special leave  granted  by         this Court against the judgment of the High Court of  Kerala         in O.P. No. 5566 of 1972 by respondents 4 to 8 and 13 before         the High Court.             The  respondents herein filed the writ petition for  the         issue of the Writ of Certiorari calling for records relating         to  Ex.  P-10,  GO  Rt. No. 3386/69/DD dated  23rd  October,         1969, Ex. P12 and Ex. P15 and quash the same and to issue  a         writ  of  mandamus  directing  the respondents 1 and  2  who         are the State of Kerala represented by the Chief  Secretary,         Government  of  Kerala, and the Director  of  Panchayats  to         forbear  the  implementation of Ex. P12 and  further  direct         them to implement Ex. P-8 grading-3 list or in the, alterna-         tive  to  issue a writ of mandamus directing  the  State  of         Kerala to consider and dispose of Ex. P13 and similar repre-         sentations  by respondents 3 and 4 on merits.  It  was  also         prayed that a writ of certiorari quashing Ex. P17 in so  far         as it related to the petitioners and respondents 3 to 18  in         the  writ  petition be issued and also to issue  a  writ  of         mandamus compelling the respondents 1 and 2, State of Kerala         and the Director of Panchayats, to assign the writ petition-         ers the appropriate ranks in the cadre of Executive Officers         in the Panchayat Services.  The High Court allowed the  writ         petition  and set aside the list Ex. P17, the order Ex.  P12

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       and  the  order Ex. P15 dismissing the appeal  petition  Ex.         P14and directed that a fresh list be prepared in  accordance         with   the principles laid down in Ex. P16 in the  light  of         the judgment  of  the High Court.  Aggrieved by the decision         of the High Court the appellants have preferred this appeal.             The  writ  petition  was contested  by  18  respondents.         Respondents 3 to 10 were Panchayat executive officers of the         Malabar area functioning under the Madras Village  Panchayat         Act,   1951,  on 31st December, 1961.  Respondents 11 to  18         were  Panchayat  Officers functioning as such on 31st Decem-         ber, 1961 under the  Travancore Cochin Panchayats Act, 1950.         The Kerala Panchayats Act, 1960, Act 32 of 1960 received the         assent  of the Governor on 8th December, 1960, and was  pub-         lished  in  Kerala Gazette Extraordinary No. 119  dated  9th         December,  1960.  It is common ground that  the  respondents         became Government servants on and from 1st January, 1962.         689         On  15th  May, 1961, under Ex. P1 the Government  passed  an         order  that  all Panchayat Officers/executive  officers  who         continue   to  hold their appointments at the time when  the         Act came into force will De absorbed as Panchayat  executive         officers  in  the new Panchayats.  The same  order  provided         that  the staff of the Malabar District Board shall  be  ab-         sorbed  as Panchayat executive officers in  suitable  grades         according to their qualifications, grades and suitability.             In  December,  1961, 17 Panchayat officers  were  to  be         appointed on a scale of pay higher than the scale applicable         to  the Panchayat executive officers.  The  Public   Service         Commission   selected  17 Panchayat executive  officers  who         were  on the scale of pay Rs. 80-150 and drew up a  list  on         27th  December,  1961.   They were  appointed  as  Panchayat         Inspectors under Ex. P8 on 28th December, 1961.  To fill  up         these  vacancies 17 of the Panchayat executive officers  who         were in Grade H on the scale of pay Rs. 40-120, the respond-         ents  3  to 18 were appointed.  The 5 appellants  before  us         were appointed as executive officers on the grade I Rs.  80-         250 as and from 1st January, 1962.             The  respondents  who were the petitioners in  the  writ         petition  were  integrated in the service.   The  Government         passed  orders laying down the principles of integration  of         the  District  Board employees and the  Panchayat  executive         officers and Panchayat Officers.  The impugned orders  under         the writ petition are Ex. P10, Ex. PI2 and  Ex.  P15. It  is         also prayed that Ex. P17 may be quashed.  The Government  in         Ex.  P10  came to the conclusion that the vacancies  on  the         advice of the Public Service Commission and the  appointment         of those that had been advised on 28th December. 1961, arose         only   on  the  dates enumerated in the order Ex.  P10  com-         mencing from 30th December, 1961, and ending with 2nd  Janu-         ary, 1962 and that the appointment can only be on occurrence         of  the  vacancies.  We do not see on what  basis   Ex.  P10         could  be challenged.  Ex. P10 refers  to  G.O. MS No. 93/62         dated 13th February, 1962.  By the G.O. of 1962, 16 respond-         ents  in the writ petition were promoted as executive  offi-         cers Grade I on the advice of the Public Service Commission.         The promotion of the respondents in the writ petition having         been ordered as early as 13th February, 1962, without  chal-         lenging  that order a subsequent order which determined  the         date of their commencement service cannot be challenged.  In         fact, the respondents were appointed to the higher posts  on         28th December, 1961, and they took charge on 30th  December,         1961,  31st December, 1961, 1st January, 1962 and 2nd  Janu-         ary, 1962.  The respondents in this petition were integrated         into the service only on 1st January, 1962.  Their  position         in the service was to be determined by the Government later.

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       If  the  respondents were aggrieved at the  posting  to  the         higher post of the present appellants and others they  ought         to  have  even challenged promotion which was  made  on  1st         January, 1962.  Not having  questioned  the legality of  the         promotion  or the G.O. of 1962 it is ’too late for  them  to         question  the  validity of the G.O. of 1969 filing  a   writ         petition in the year 1972.             Apart from this insurmountable objection even on  merits         the respondents have no claim.  The Government passed Ex. R1         dated  31st  January, 1965, laying down  the  principles  of         integration of the District         690         Board  employees  and the Panchayat executing  officers  and         Panchayat  Officers.  It provided that the integration  must         be based on functional parity.  Ex. P12 is a G.O. dated  5th         May, 1970-  The G.O. refers to the earlier G. O. dated  13th         February,  1962,  and 24th June, 1969, and states  that  the         names  of  the  17 executive officers,  the  appellants  and         others,  are given rank under executive officers Grade I  as         on 6th January, 1962.  The gradation list is P-17 dated 22nd         July,   1972.  After referring to the earlier   G.  O.   the         Director  of Panchayats approved a final gradation  list  of         Executive  Officers of Panchayats as on 6th  January,  1962.         The  appellants are ranked as 58, 59, 60, 61, 62  etc.   The         respondents  made representations against Ex. P12 but  these         representations  were  not accepted and a list  Ex.  P8  was         drawn up.  The respondents again objected to the  list   and         subsequently  Ex.  P12 was prepared.   Objections(P14)  were         raised  to Ex. P12 but they were rejected by order  Ex.  P15         and final list Ex. P17 was published in accordance with  the         suggestions made in Ex. P12.             The contention on behalf of the respondents is that  the         order  under  Ex. P12 is against the position taken  by  the         Government  in Ex. P10) and Pl0(a) and the Director  had  no         authority to prepare a list in contravention of Exs. P10 and         Pl0(a).  Ex. P12 was challenged on the ground that it is not         in accordance with Ex. P-16 which settled the principles  to         govern the integration.  It was therefore submitted that Ex.         P12  and P17 must be quashed.  Strong reliance  was   placed         on  the order of the Government dated 15th May, 1961,  which         while it provided that Panchayat Officers Executive Officers         who continue to hold their appointments at the time when the         Act comes into force will be absorbed as Panchayat Executive         Officers  in  the new Panchayats, secured the right  of  the         staff  of the District Board by providing that the staff  of         the  Malabar District Board shall be absorbed  as  Panchayat         Executive  Officers  in suitable Grades according  to  their         qualifications, grades and suitability.  On the basis of the         principle  of  integration above cited it was submitted that         if the vacancies in which the appellants and other Panchayat         Executive  Officers were absorbed  arose after 1st  January,         1962,  the  respondents would be entitled to  be  integrated         along with the Panchayat Executive Officers and as they were         drawing the same pay they ought to have been given an  equal         ranking.  We have already pointed out  that these   appoint-         ments   were  made before 31st December, 1961, and  as  such         the respondents cannot have any claim.  The appointments  of         the  appellants and other Panchayat Executive Officers  were         made before 31st December, 1961, and as the integration  was         to take effect from 1st January, 1962, they cannot have  any         grievance.  Further, it will be seen from 6.0. MS.97/67/A  &         RDD  dated 18th March, 1967, which refers to  absorption  of         various categories of staff of the defunct Malabar  District         Board  in  the Department of Local Bodies, it is  stated  in         Paragraph 3 that while 9 U.D. Clerks will be equated to  the

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       posts  of Panchayat Executive Officers, 2nd Grade, 21  Lower         Division  Clerks  and 8 Revenue Inspectors  and  4  clerical         attenders  will  be equated to the posts  of  the  Panchayat         Executive  Officers 3rd grade.  It is stated that   respond-         ents 1 to 4 come under this category and are only 3rd  Grade         Executive Officers.  It will thus be seen that the  respond-         ents  were not equated  with  the appellants and other  Pan-         chayat  Executive Officers when  they  were integrated  from         the District Board service.         691             The persons similarly situated as the respondents herein         who  were integrated from the District Board services  filed         writ petitions before the High Court impleading the  present         appellants  challenging  the gradation and failed  in  their         attempt.   The  earliest  petition is in O.P.  No.  1431  of         19’70.   Justice Isaac who heard the petition observed  that         the  petitioners  came  in the integrated  service  as   3rd         Grade  Executive -Officers and were promoted to  2nd   Grade         with  effect  from  6th February, 1968, while respondents  3         to  10  (some of whom are appellants before  us)  have  been         promoted  as  early  as 16th February, 1962,  as  1st  grade         officers.   The  learned  Judge  further   observed,   "Even         ignoring  this, respondents 3 to 10 were I Grade   Executive         Officers  from  16-2-1962, while the Petitioner  has  become         even II Grade Executive Officer only with effect from   6-2-         1966."   As   the  petitioner before the learned  Judge  was         holding  a post much inferior to the posts held by  respond-         ents 3 to 10 from 1st February, 1962,  onwards, he dismissed         the  petition being devoid of any merit on 24th May,  1972..         Another writ petition No. O.P. No. 6423 filed by one of  the         persons integrated from the District Board Services, against         the  present  appellants and others was  also  dismissed  by         Justice  Isaac  on  27th June, 1973.  A  writ  appeal  filed         against the order of Justice Isaac in O.P. No- 1431 of  1970         was  summarily  dismissed by the Bench of  the  Kerala  High         Court.         While  the earlier judgments were all decided  against   the         respondents,  the  Kerala High Court in the  judgment  under         appeal  took  a different view.  The decision  under  appeal         proceeds on the basis that a regrettable mistake crept  into         the judgment in O.P. No. 1431 of 1970 and the earlier  deci-         sion  proceeded  on  the basis that there was  a  III  Grade         mentioned  in G.O. 814 dated 17th November, 1962.  The  High         Court  was of the view that there was a III Grade under  the         G.O. above referred to the earlier decision missed the  fact         that these Grades were not applicable on 1st January,  1962.         Though G.O. 814 of 1962 was ,not placed before us we are not         sure  whether there was any mistake in the earlier  judgment         for  the  G.O. MS 97/67 dated 18th March,  1967,  refers  to         persons being transferred from the  Malabar  District  Board         as  Panchayat Executive Officers III Grade.  Be that  as  it         may  we are satisfied that the respondents are not  entitled         to   the  reliefs prayed for by them in the writ  petitions.         As the appellants were promoted to a higher post before  the         respondents  were integrated into the Government service  on         1st January, 1962.  Further  throughout  the appellants have         been  treated  as occupying a higher post  and   respondents         much lower post.  Though the promotion of the appellants was         before  1st  January,  1962, and was  confirmed  by  various         orders  of  the Government the respondents  herein  did  not         choose  to  challenge  the orders till the year,  1974.   In         the  circumstances, we are satisfied that the order  of  the         Kerala  High  Court has to be set aside and  the  appeal  is         allowed with costs.         P.B.R.                                    Appeal allowed.

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       5--707SCI/77         692