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PETITIONER: STATE OF MADHYA PRADESH & ANR.

       Vs.

RESPONDENT: SHRI RAMESHWAR PRASAD (DEAD) BY L.RS.

DATE OF JUDGMENT10/12/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA MATHEW, KUTTYIL KURIEN

CITATION:  1976 AIR  214            1976 SCR  (2) 965  1976 SCC  (2)  37

ACT:      States Reorganisation  Act (1956)-Section 115-Gradation List of  inter se seniority of officers after integration of States prepared  on the principles laid down in notification No. 2581/2577/V-St  dated 28-10-1961, after an objective and thorough consideration  of various  aspects of the career of the employees  is valid-Representation by affected employee, not filed  within a  month of the publication of Provisional gradation list,  but filed after final gradation List is not valid.

HEADNOTE:      "R" an  employee of  the Government  of C.P. & Berar on the formation  of the State of Madhya Pradesh, carved out by merging the  erstwhile States of Maha Koshal, Madhya Bharat, Vindhya Pradesh  & Bhopal  in 1956  was allotted  to the new State of Madhya Pradesh. A provisional common gradation list of those  officers of various departments allocated from the merging  states   was  prepared,   in  accordance  with  the principles laid  down and  as per  the States Reorganisation Act, 1956  on 3-10-1961 and published in the M.P. Government gazette on  28-10-1961. Objections  if any, were also called for within  a month therefrom from the affected employees. A final gradation  list was  prepared on  November 7, 1964 and published in  the official  gazette on November 11, 1964. On October 1,  1964 the  respondent, aggrieved  by the position given to  him in  the gradation  list  represented  that  he should have  been shown senior to five officers hailing from Maha Koshal  Region because  he was  appointed as  Assistant Sales Tax  Officer in that region before them. The assigning of higher  seniority to  the said  officers was after taking into consideration  the fact of their holding posts carrying almost equivalent  grade of the post held by the respondent. The respondent  made another  representation on  February 2, 1965 and filed a writ on October 16, 1966. The rule nisi was made absolute  on September  20, 1969, by the Madhya Pradesh High Court  following an  earlier decision  of that Court in Kanhayalal  Pandit’s  case  decided  on  November  17,  1964 wherein it  was held  that the affected employees could make their representation  only after the final gradation list is published. On appeal by special leave, the Court ^

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    HELD :  (i) The  object of  preparing  a  tentative  or provisional gradation list was to give an opportunity to the officers whose  seniority was determined in the list to make their representation  in order  to  satisfy  the  Government regarding any  mistake  or  error  that  had  crept  in  the gradation list.  If the  employee concerned did not file his representation  within   a  month   from  the  date  of  the publication of  the provisional  gradation  list,  then  his representation should  have been rejected out right. [959 F- G]      (ii) In fact the purport of S. 116 (5) (b) of the State Reorganisation Act, 1956 was that there should be a fair and equitable  treatment   of  all   persons  affected   by  the provisions of  that section.  This could  only  be  done  if before a final gradation list was prepared the officers were given an  opportunity to  acquaint the Government with their respective points  of view.  It was indeed a strange view to take that  the provisional  gradation list was absolutely of no consequence and after the said list was finalised and the time for  finalising representation  expired, then alone the employees concerned  should have  been asked  to file  their representations. This  is really putting the cart before the horse. Once  the list  was finalised,  it would be difficult for the  Government to review its orders which would lead to serious  complications   and  dislocation   of  the  service structure of the State. [960 B-D]      (iii) It appears, from a perusal of the various clauses of S.  115 of  the State Reorganisation Act that the Statute contemplated three  stages for  determining the seniority of the officers.      (a)  The   formation   of   Advisory   Committees   and determination of  principles  on  the  basis  of  which  the seniority was to be determined; 956      (b) the  preparation of a provisional gradation list so as to give an opportunity to the employees concerned to file their objections; and      (c) the  publication of  the final gradation list after consideration  of  the  objections  file  by  the  employees concerned and  taking an overall view of the matter. [960 D- E]      Kanahyalal Pandit  v. State  of Madhya  Pradesh  (Misc. Petition No.  188 of  1974 dt.  17-11-64  M.P.  High  Court) overruled.      (iv) In  the instant  case, the  equation of  the posts based on  a chalked  out objective formula so that the least prejudice is  caused  to  the  employees  concerned  was  in conformity with  the principles  laid down  in S. 115 of the States Reorganisation Act. [961 E-F]      (v) The  Government had  prepared the  final  gradation list after  an objective  and thorough  consideration of the various aspects  of the  career of  the  employees  and  the principles which governed the list were wholly in consonance with the  provisions of  S. 115 of the States Reorganisation Act; 1966. [962 D-E]      Union of  India &  Anr. v. P. K. Roy and Ors., [1968] 2 S.C.R. 196, 198, referred to.      N. Subba  Rao etc.  v. Union  of India & Ors., [1973] 1 S.C.R. 945, followed.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 521 of 1971.

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    Appeal by  Special Leave  from the  Judgment and  Order dated the  20-9-1969 of  the Madhya  Pradesh High  Court  in Miscellaneous Petition No. 127 of 1966.      Ram Panjwani, Advocate General (Dy.), Madhya Pradesh H. S. Parihar and I. N. Shroff for the Appellants.      P. P. Rao and S. P. Nayar for Respondent No. 2.      The Judgment of the Court was delivered by      FAZAL ALI, J.-This is an appeal by special leave by the State of  Madhya Pradesh  against the judgment of the Madhya Pradesh High  Court dated  September 20,  1969 by  which the final  gradation  list  of  seniority  of  certain  officers prepared by  the Government following the integration of the Madhya Pradesh  State after  merging the erstwhile States of Maha Koshal,  Madhya Bharat,  Vindhya Pradesh and Bhopal has been partly quashed. The respondent in whose favour the High Court decided  the case is already dead and has therefore no interest in  the result  of  the  proceedings.  But  as  the gradation list  has been  struck down by the High Court, the Government as  also  the  officers  who  had  been  given  a particular seniority  are undoubtedly  affected by the order of the  High Court.  That is  why both  the State  of Madhya Pradesh and the Union of India have pressed this appeal.      The facts of the case lie within a very narrow compass. In 1938  the respondent  Rameshwar Prasad  was recruited  as Excise Sub-Inspector by the then Government of C.P. & Berar. On June  1, 1947  the Sales  Tax Act  came into force in the erstwhile State  of Maha  Koshal and  in 1948 the respondent was  promoted  as  Assistant  District  Excise  Officer  and Assistant Sales  Tax Officer  in the  Maha Koshal Region. In 1949 the  States of  Vindhya Pradesh  and Madhya Bharat were formed. On  April 1,  1950 the Sales Tax Act came into force in Vindhya Pradesh and a month later i.e. on May 1, 1950 957 the Sales  Tax Act was enforced in Madhya Bharat. Thereafter in  accordance   with  the   report  given   by  the  States Reorganisation Commission,  the State Reorganisation Act was passed by  which the  new State of Madhya Pradesh was carved out by  merging the  erstwhile States of Maha Koshal, Madhya Bharat, Vindhya  Pradesh and  Bhopal.  The  appellants  have produced before  us the White Paper issued by the Government regarding the  merger  and  reorganisation  of  the  various States referred  to above  which is  not in  dispute at all. After the  reorganisation, the  services of  the  respondent were allocated  to the new State of Madhya Pradesh. We might further mention  that prior  to the  integration of  Vindhya Pradesh and  Madhya Bharat both the States had their similar Sales Tax  Act which  was known as Internal Customs Duty and there were  number of  officers who  were  manning  the  Tax Organisation in  those States  holding almost ranks equal to the respondent.      After  the  reorganisation  of  the  States  it  became necessary to prepare a common gradation list of the officers of  various  Departments  so  that  the  officers  who  were allocated to  the new State of Madhya Pradesh did not suffer any prejudice. Section 115 of the States Reorganisation Act, 1956 provided,  amongst others, that the Central Government, by general  or special order, was to determine the successor State to  which every person referred to in sub-s. (2) of s. 115 was  to be  allotted. Sub-section (5) of s. 115 enjoined on the  Central Government to establish one or more Advisory Committee for the purpose of division and integration of the services among  the new  State  and  ensuring  of  fair  and equitable  treatment   to  all   persons  affected   by  the provisions of  the section  and the  proper consideration of any representation  made by  such persons.  In pursuance  of

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these statutory  provisions the Central Government appointed an Advisory  Committee for  the newly  integrated  State  of Madhya Pradesh  to prepare  a  gradation  list  which  would reflect the  seniority of  the officers  concerned in a fair and equitable  manner so  that no prejudice or injustice was caused to  any officer  by virtue  of the integration of the States. According  to the  appellants on the recommendations of the Advisory Committee certain principles for determining the seniority  of the  officers coming  from  the  erstwhile States were  determined and  in accordance  with the  same a provisional gradation list was prepared showing seniority of the officers  as on  November 1, 1956. These principles were formulated by  virtue of  a notification No. 2581/2577/ V-ST dated October  28, 1961,  which has been quoted in para 3 of the  Petition  for  Special  Leave  to  appeal  and  may  be extracted as follows:           "2581/2577/V.ST.-Whereas, the following principles      have been  formulated for being observed, as far as may      be, in  the integration of Government servants allotted      for service to the new State of Madhya Pradesh viz:-      I. In the matter of equation of posts-           (i) Where there were regularly constituted similar      cadres in  the different  integrating units  the cadres      will ordinarily be integrated on that basis: but 958           (ii) Where, however,  there were  no such  similar      cadres  the   following  factors  will  be  taken  into      consideration in determining the equation of posts;           (a) nature and duties of a post;           (b) powers  exercised by  the officers  holding  a      post, the extent of territorial or other charge held or      responsibilities discharged;           (c) the minimum qualifications, if any, prescribed      for recruitment to the post; and           (d) the salary of the post." It has not been shown to us that the principles laid down by the  Government   Notification  in   accordance   with   the recommendations of  the Advisory  Committee were  in any way unfair or  inequitable or  worked injustice to the employees concerned. On  the other  hand we  find that  the principles formulated by  the Advisory  Committee strike a just balance vis-a-vis the various employees coming from erstwhile States in order  to determine  their seniority  by classifying  the officers into  three categories, namely, Assistant Sales Tax Officers of  Maha Koshal,  Inspectors of Sales Tax of Madhya Bharat and Sales Tax Inspectors including Assistant District Excise and  Sales Tax  Officers of  Vindhya Pradesh.  Having classified these  officers  the  seniority  has  been  fixed according to  the length  of service  and the grades held by the officers concerned.      In the  provisional gradation  list the  respondent was shown at  No. 22. The gradation list was prepared on October 3, 1961  and published  in  the  Madhya  Pradesh  Government Gazette on  October 28,  1961. Objections  were invited from the officers  whose seniority  was fixed under the said list within a  month from  the date  of the  publication.  It  is common ground  that the respondent filed no objection at all within the  time fixed. The Government after considering the principles laid  down by  the  Advisory  Committee  and  the formula evolved  by the gradation list and the consideration of the  representations of  the officers who had filed their objections  in   pursuance  of   the  publication   of   the provisional gradation  list prepared  a final gradation list on November 7, 1964 and published the same in the Government Gazette on November 11, 1964.

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    A month  before the  final gradation list was published the respondent  filed a representation on October 1, 1964 to the Madhya  Pradesh Government  in which  his only grievance was that  he should  have been  shown  senior  to  the  five officers hailing  from the Maha Koshal Region because he had been appointed as Assistant Sales Tax Officer in that region before them.  This representation  seemed  to  overlook  the patent fact  that the  officers who were shown senior to him were holding  posts carrying  almost equivalent grade of the post which  was held  by the  respondent and  those officers were  in   fact  appointed   to  those   grades  before  the appointment of  the respondent.  Another representation  was filed by  the respondent  on February  18, 1965.  But a  few months  before   this  the  Madhya  Pradesh  High  Court  in Kanahyalal Pandit  v. State  of Madhya  Pradesh(1) held that the affected employees of the 959 State could  make their representations only after the final gradation list  was published.  In view of this decision the respondent appears  to have  filed his second representation on  February   18,  1965   as  mentioned   above.  In   this representation  also   the  respondent  contended  that  the services rendered  by the  Madhya Bharat and Vindhya Pradesh officers prior  to the  coming into  force of  the Sales Tax Acts in  the respective  States should not have been counted for  the   purpose  of  determining  the  seniority  of  the respondent.      Thereafter the  respondent filed a writ petition in the Madhya Pradesh  High Court on February 16, 1966, praying for quashing the  gradation list. The appellant filed his return on July  8, 1966  and the  High Court  by its judgment dated September 20,  1969 allowed  the petition  and  quashed  the gradation list insofar as it affected the respondent and the other five  officers who were shown above him. The appellant then filed an application for leave to appeal to the Supreme Court  which   was  dismissed   on  November  21,  1969  and thereafter moved  this Court  for special  leave  to  appeal which was granted on March 25,  1971.      The High  Court appears  to have  quashed a part of the gradation list  mainly on two grounds. In the first place it held, following the decision of the High Court in Kanahyalal Pandit’s case  (supra) that  as the final gradation list was published on  November 11, 1964 the respondent had the right to  make   his  representation   thereafter  and  since  his representation  was   not  considered   the  order   of  the Government sanctioning  the final gradation list was legally erroneous. Secondly  it was  held by the High Court that the contention of  the respondent  that the services rendered by the other five officers in Madhya Bharat and Vindhya Pradesh ought not  to have  been considered as valid and should have been given  effect to  by the  Government in  preparing  the final gradation  list. We are satisfied after perusal of the materials that  the first  ground on  which the  High  Court quashed the  gradation list was not at all sound and on that ground alone the order of the High Court is liable to be set aside. It  is  manifest  that  the  object  of  preparing  a tentative or  provisional gradation  list  was  to  give  an opportunity to  the officers  whose seniority was determined in the  list to  make  their  representations  in  order  to satisfy the  Government regarding  any mistake or error that had crept  in the  gradation list. If the employee concerned did not file his representation within a month from the date of the  publication of  the provisional gradation list, then his representation  should have  been rejected outright. The Madhya Pradesh  High Court  was in  error in taking the view

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that the  employee concerned  should have  waited for filing his  representation  until  the  final  gradation  list  was published. The  Madhya  Pradesh  High  Court  in  Kanahyalal Pandit’s case (supra) had observed as follows:           "According to  the view  taken in these cases, the      preparation of  combined gradation  list by  the  State      Government is,  generally speaking,  only an incidental      or subsidiary  act such  as would  aid and  assist  the      Central  Government   in  discharging   its   statutory      responsibility of  integration of  services. If so, the      petitioner should wait until the final gradation list 960      is published,  for it  may well  be that he may have no      cause for any grievance against that list. On the other      hand, if  he finds  that he is aggrieved thereby, he is      entitled to  represent against  it under section 115(5)      ibid  and   he  has   a  right   to  insist   that  his      representation receives  ’proper consideration’.  There      is, in  this view, no ground for interfering at present      with the order passed by the Government of India on the      petitioner’s representation dated 5 January 1962." The aforesaid  view taken  by the  High Court  is not at all intelligible. In  fact the  purport of  s. 115(5)(b)  of the States Reorganisation  Act, 1956  was that there should be a fair and  equitable treatment of all persons affected by the provisions of  that section.  This could  only  be  done  if before a final gradation list was prepared the officers were given an  opportunity to  acquaint the Government with their respective points  of view.  It was indeed a strange view to take that  the provisional  gradation list was absolutely of no consequence and after the said list was finalised and the time for  filing  representation  expired,  then  alone  the employees concerned  should have  been asked  to file  their representations. This  is really putting the cart before the horse. Once  the list  was finalised,  it would be difficult for the  Government to review its orders which would lead to serious  complications   and  dislocation   to  the  service structure of  the State.  It appears to us from a perusal of the various  clauses of  s. 115 of the States Reorganisation Act  that   the  statute   contemplated  three   stages  for determining the  seniority of the officers-(i) the formation of Advisory  Committees and  determination of  principles on the basis  of which the seniority was to be determined; (ii) the preparation  of a  provisional gradation  list so  as to give an opportunity to the employees concerned to file their objections; and (iii) the publication of the final gradation list after  consideration of  the objections  filed  by  the employees concerned  and  taking  an  overall  view  of  the matter. In  these circumstances,  therefore, the view of the Madhya Pradesh  High Court  that the representation filed by the respondent was premature is legally erroneous and we are unable to  agree with  the same.  We are,  therefore, of the opinion that  the judgment  of the Madhya Pradesh High Court in Kanahyalal  Pandit’s case (supra) decided on November 17, 1964 was  not correctly  decided.  The  High  Court  in  the instant case  has based  its order mainly on the judgment of the Madhya Pradesh Court in Kanahyalal Pandit’s case (supra) which being  incorrectly decided,  the judgment  of the High Court in this case must be quashed on this ground alone, and the representation  filed by  the respondent along after the expiry of  the time  mentioned in the Gazette publishing the provisional gradation  list would  have to  be  rejected  as belated.      Even on  merits a  cursory glance of the principles and the formula  formulated by  the Government  in preparing the

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gradation list  would reveal  that no injustice or prejudice was caused to the respondent. In paragraph-3 of the counter- affidavit by the appellants it has been averred as follows:           "It  is   further  submitted  that  the  inter  se      seniority in  Madhya Bharat  and Vindhya  Pradesh units      had become final 961      after taking into consideration the service rendered in      the Princely States and cannot now be challenged. After      the seniority in the units of Madhya Bharat and Vindhya      Pradesh was  finally determined, the posts of Assistant      Sales Tax  Officers of  Mahakoshal  were  equated  with      Inspectors of  Sales Tax of Madhya Bharat and Sales Tax      Inspectors  including  Assistant  District  Excise  and      Sales Tax  Officer of Vindhya Pradesh region. According      to  the   principles  adopted   for   determining   the      seniority, the  length of continuous service on equated      post was  considered. The  seniority  of  a  person  is      determined with reference to a particular date allotted      to him for this purpose. When once the seniority in the      integrating units  was determined in this manner by the      Governments of  those units,  it is  submitted that the      seniority of  the incumbents  from the  units of Madhya      Bharat and Vindhya Pradesh could not be disturbed after      the reorganisation  of States under section 115 of that      Act to the detriment of the incumbents." It has  thus been  explained by  the appellants  that as the Sales Tax  Department in  the integrating  States of  Madhya Pradesh was  new the  persons  absorbed  in  the  Department brought with them the seniority already assigned to them. It was also  pointed out in the counter-affidavit that in these circumstances it  cannot be  said  that  as  the  Sales  Tax Department came  into existence in 1950 in Madhya Bharat and Vindhya Pradesh regions, the personnel of these regions ipso facto became  junior to those in Mahakoshal region where the Act had  come into  force in  1947. We  fully agree with the explanation given by the appellants in the counter-affidavit as the  same appears  to be  reasonable and  convincing, and seeks to  chalk out  an objective  formula so that the least prejudice is  caused to  the  employees  concerned.  It  is, manifest  that   the  services  rendered  in  the  erstwhile princely States  by the  officers who  were  put  above  the respondent were  taken into  account in  the equated  posts. Thus the  equation of  the posts  was in conformity with the principles laid  down in s. 115 of the States Reorganisation Act and was done in consultation with the Advisory Committee and was  finally approved  by  the  Central  Government.  To accept the  prayer of  the respondent  would be  to  set  at naught the  services rendered  by the  officers who were put above the  respondent in  the erstwhile  princely  State  in grades which  were more  or less  similar to the one held by the respondent.  In these  circumstances we  find  ourselves unable to  agree, even on merits, with the view taken by the High Court.      In Union  of India  & Anr.  v. P.  K. Roy & Others(1) a similar argument  made by  some of the employees coming from erstwhile  princely  States  was  repelled  and  this  Court observed as follows:           "In our  opinion, the  procedure adopted  in  this      case does not contravene the provisions of s. 115(5) of      the said  Act, because  it was  the Central  Government      which laid  down the principles for integration, it was      the   Central    Government   which    considered   the      representations and  passed final  orders, and both the      preliminary and final gradation lists were prepared

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962      and  published   by  the  State  Government  under  the      direction  and   with  the   sanction  of  the  Central      Government."      Similarly in  N. Subba  Rao etc.  v. Union  of India  & Others(1) this  Court laid  down that  under s.  115 of  the States Reorganisation  Act two  requirements were necessary- (i) that  there should  be a division and integration of the services among  the new  States; and  (ii) that  a fair  and equitable  treatment   should  be  ensured  to  all  persons affected  by   the  integration.   In  that  case  also  the Conference of the Chief Secretaries had preceded the drawing up of  the  provisional  gradation  list  formulating  four- principles, namely,  (i) the  nature and  duties of  a post; (ii)  the  responsibilities  and  powers  exercised  by  the officers holding  a post; the extent of territorial or other charge  held   or  responsibilities  discharged;  (iii)  the minimum qualifications,  if  any,  prescribed  for  the  two posts; and  (iv) the  salary of  the post.  These principles were approved by the Court in that case.      In the  instant case also the appellants have stated in their counter  affidavit that the principles mentioned above were duly  taken into  consideration and in addition to this the equated  grades held  by the  respondent and  the  other officers were  also taken into consideration in order to fix the seniority of the respondent.      In  these  circumstances  we  are  satisfied  that  the Government had  prepared the  final gradation  list after an objective and  thorough consideration of the various aspects of the  career of  the employees  and the  principles  which governed  the  list  were  wholly  in  consonance  with  the provisions of s. 115 of the States Reorganisation Act, 1956.      For these reasons, therefore, the appeal is allowed and the judgment  of the  High Court dated September 20, 1969 is set aside.  As the  respondent is  already dead  we make  no order as to costs. S.R.                                         Appeal allowed. 963