TaxTMI 
TaxTMI 
1967 (11) TMI 107
X X X X Extracts X X X X
X X X X Extracts X X X X
....tra vires and must be quashed by the grant of a writ. The said Act was enacted to provide for the reorganisation of the States of India and for matters connected therewith and came into force with effect from November 1, 1956. By s. 9 (1) of the said Act there was formed a "new State" to be known as the State of Madhya Pradesh comprising the following territories: "(a) the territories of the existing State of Madhya Pradesh, except the districts mentioned in clause (e) of sub-section (1) of section 8; (b) the territories of the existing State of Madhya Bharat, except Sunel tappa of Bhanpura tahsil of Mandsaur district; (c) Sironj sub-division of Kotah district in the existing State of Rajasthan; (d) the territories of the existing State of Bhopal, and (e) the territories of the existing State of Vindhya Pradesh;". Respondents 1 to 13 were Assistant Engineers in the erstwhile State of Madhya Pradesh. The first four of them were, appointed as such on probation from October 27, 1956 and the others had been appointed as temporary Engineers. The respondents continued to serve in the new State and a new "Buildings, Roads and Irrigation Branch of the Public Works D....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tes and the States of Andhra Pradesh and Madras; and (b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons. Section 116 provided for the continuance of officers in the posts they previously held and s. 117 empowered the Central Government to give directions to the State Government in respect of their integration. Section 117 enacts: "The Central Government may at any time before or after the appointed day give such directions to. any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions." Subsequent to the passing of the said Act a meeting of the Chief Secretaries of the various States that were to be affected by the reorganisation was held at Delhi on May 18 and 19, 1956 at the invitation of the Central Government. In this meeting certain decisions were taken as to the general principles that should be observed with regard to the integration work. By their letter No. 62/22/56 SR 11 dated April 3, 1957 (Annexur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ew to ensure that fair and equitable treatment is given to the service personnel belonging to the Gazetted cadres of the State Services who are affected by the State Reorganisation and to consider representations submitted by them." As directed by the Central Government, the State Government also appointed the necessary committees to undertake the preliminary work of integration. On September 12, 1959 a provisional gradation list of the department to which the respondents belonged was published by the State Government by notification No. 3175-Integ. dated September 12, 1959. In the preamble attached to. The provisional list the principles (which were already approved by the Central Government) on the basis of which the lists were prepared, were set out. But there was a proviso to cl. (2) of the preamble which said that "where a service or cadre consists of compartments/grades and where the normal method of recruitment to a higher compartment/grade is by promotion from a lower compartment/grade, continuous service will ordinarily be reckoned from the date of commencement of service in the lowest compartment/grade, on a salary not below such limit as may be specified in this behal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the second list prepared by the State Government on that basis was approved subject to two modifications, (i) The ranking of the officers from Bhopal region (Serial Nos. 60 to 70) should be rearranged as per rankings given by the Union Public Service Commission. (ii) In the case of officers from Mahakoshal region (Serial Nos. 59 onwards) it was pointed out that the then State of Madhya Pradesh had not passed orders fixing the ranking of the said officers and hence the ranking should be done by the State Government keeping in view the normal rule of fixing ranks with reference to date of appointment on a substantive vacancy, whether on probation or as confirmed officer. It was further directed that as the rearrangement as per modifications suggested was likely to affect the ranks of officers of other regions the entire list should be reviewed in the light of directions given by the Central Government. On this direction of the Central Government, the inter se seniority of the officers of Mahakoshal region was refixed by the State Government by its 1otter No. 1086/6216/XIX/E dated February 20. 1962. In the light of this list the provisional gradation list was also revised. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shaft be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof." As regards the matters in respect of which the Legislature of a State has the power to make laws, item 42 in List II of the Seventh Schedule to the Constitution specifies "State Public Services", and under the provisions of Art. 162, the executive power of the State extends to State Public Services. This power is, however, subject to the other provisions of the Constitution. Article 309 states: "Subject to the provisions of this Constitution Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the. President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The opposite view-point was presented by Mr. Asoke Sen on behalf of the respondents. It was contended that under s. 115(5) of the said Act the Central Government was given, by necessary implication, the exclusive power to integrate and the word "allotment" in s. 115(3) & (4) carries with it the necessary power of fusion and integration. We do not propose, for the purpose of the present case, to decide which of these viewpoints as to the interpretation of s. 115(3), s. 115(4) and s. 115(5) of the said Act is correct. We shall assume in favour of the respondents that s. 115 ( 3 ), s. 115(4) and s..115(5) read together confer exclusive power on the Central Government in regard to integration. Even on that assumption we do not agree with the finding of the High Court that there was improper delegation of its statutory powers and duties by the Central Government, that there has been a violation of the provisions of s. 115(5) of the said Act or that the final gradation list published by the notification dated April 6, 1962 is illegal and ultra vires. Generally speaking, the work of integration requires the formulation of principles on which the work has to be carried out, the actual p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct only to the maintenance of inter se seniority of the officers coming from several integrating regions. The Government of India therefore directed that revised list should be prepared on the basis of this formula. Accordingly, the State Government sent a second list prepared on the basis of the conventional formula, viz., continuous service in the equated grade subject to maintenance of inter se seniority. The Central Government thereafter in consultation with the advisory committee examined both the lists and after taking into account the representations made, conveyed to the State Government its decision by its memorandum dated September 16,1961 with regard to the preparation of the final gradation list. The decision thus communicated may be summarised as follows:(1) Inter se seniority should be determined only on the basis of continuous length of service, whether in a temporary or permanent capacity in the equated grade, (2) the second gradation list prepared according to this principle and forwarded to the Central Government was approved subject to certain modifications in the equations and the changes proposed in accordance with the decisions on the individual representation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 and published by the State Government under the direction and with the sanction of the Central Government. It is manifest that there has been no delegation by the Central Government of ,my of its essential functions entrusted to it under the statute. It was pointed out by Mr. Asoke Sen that in its letter dated April 3, 1957 the Central Government had intimated that the work of integration should be left to the State Government. But what was meant by that letter was that only the preliminary work of preparation of the gradation lists on the principles decided upon by the Central Government should be left to the State Governments concerned. It is clear that such work cannot be done by the Central Government itself since the necessary information regarding the officers can be obtained and tabulated only by the States concerned. It was also pointed out by Mr. Asoke Sen that the preparation of the provisional and the final gradation lists by State Govern....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ernment, we are of the opinion that the steps taken by the Central Government in the present case in the' matter of integration did not amount to any delegation of its essential statutory functions. There is nothing in ss. 115 or 117 of the said Act which prohibits the Central Government in any way from taking the aid and assistance of the State Government in the matter of effecting the integration of the services. So long as the act of ultimate integration is done with the sanction and approval of the Central Government and so long as the Central Government exercises general control over the activities of the State Government in the matter. it cannot be head that there has been any violation of the principle "delegatus non potest delegare". For instance, it was observed by this Court in Pradvat Kumar Bose v. The Hon'ble The Chief Justice of Calcutta High Court([1955] 2 S,C.R. 1331. 1345): "It is well-recognised that a statutory functionary exercising such a power cannot be said to have, delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2, Annexure R-14, and (2) the final inter se seniority list published on April 6, 1962. With regard to the inter se seniority list it was pointed out by Mr. Asoke Sen that in paragraphs 9 and 10 of its letter dated September 16, 1961, Annexure R-7, the Central Government noticed that no formal orders were issued by the State of Madhya Pradesh prior to October 31, 1956 fixing the rank of the Mahakoshal officers from serial No. 59 onwards. It was customary in the old State of Madhya Pradesh that the Government issued orders regarding the rank of the officers while making a notification confirming the officers. It was pointed out that if the present rank in the combined gradation list was to be accepted it would mean that some of the officers who were not selected by the Public Service Commission of the old Madhya Pradesh for permanent posts would be senior to those selected and placed on probation as early as 1953. The normal practice adopted in such cases would appear to be to arrange the names of the officers in the order of appointment to substantive vacancy, whether on probation or as confirmed officer. It was suggested by the Central Government that the entire, matter should ....