C. P. DAMODARAN NAYAR AND P. S. MENON v. STATE OF KERALA AND OTHERS
Citation: [1974] 2 S.C.R. 867; 1973 INSC 252
Court: Supreme Court of India
Bench: P. JAGANMOHAN REDDY , P.K. GOSWAMI
Judgment date:
Case summary
1973 INSC 252. Supreme Court of India judgment dated 1973-12-20. C. P. DAMODARAN NAYAR AND P. S. MENON v. STATE OF KERALA AND OTHERS. Read the judgment and...
Judgment text
8 E F G ff C. P. DAMODARAN NAYAR AND P. S. MENON v. STATE OF KERALA AND OTHERS December 20, 1973 [P. JAGANMOH,AN REDDY AND P. K. GOSWAMI, JJ. ] 867 States Reorganisation Act, 1956, Ss. 115 ! lnd 117-Madras State judicial Service Rules, 1953; r. 11-Appl{cabiliry ! o officers allotted to Kera{a-Seniurity according to decision of Central Govcrn111e11t-Right of :staff Government. to co11stitute new cadres-'KLM' principle and its scope. . Under s. 115(5) of the States Reorganisation Act, 1956, the Central Govern- ment may·establish one or more Advisory Committees·for the purpose of assisting it in regard- to, (a) the division and integration . of services among the new States, ·-and (b} the ensuring of fair and equitable treatment to all persons affected. Under s. 177 the Centrar Government may give stich d.
irections to any such State Government as may appear to be necessary for the- purpose of giving effect to the provisions of the Act and the State Government shall comply with suc_h directions. Accordingly, a meeting of the Chief Secretaries of the various States that ·were to ·be effected by the reorganis. ation was held in May, 1956, at the-invitation of the Central Government, and certain dec1s1ons were taken as to the general principles that should be observed with regard to the integration work The Central Gov- . ernment thereafter informed the State Governments that they had decided that the -Wllrk of integration of services, equation ot' Posts and relative seniority should he dealt with by the State Governments in the Ught of those general principles. In 1962, the Central Government, after considering the representatious of t"! \e Officers -made under s. 115(5) of the· Act; in modificatton'of the . earlier pri,1ciplc· excluding pe_riods for which an appointment is held as:.
a purelyi! )top __ g~p qr. _foi:tttltous arrangement in fixing seniority, decided that the officers allocated to Kerala State from the former Madras State may be allowed benefit of emergency servi~,. f! J· wards seniority in the equated category if such service would have been re8ulans.. ed from the date of their emergency appointment and counted for seniority in Madras, on Ist November, 1956, had those officers~remained in Madras. The respondent-State acceptr-d this decision of th£ Central Government. The appellant was selected as a District Munsiff by the Madras Public Service Commission and was posted as such on May 26. 1951. and he has been in con• tinuous service since then. Consequent upon a decision of the Supreme Court of Jndia, the Madras State Judicial Service Rules (Madras Rules) were framed in 1953, but were given retrospective effect from March 1951, and the service of the appeUant and~ others was regularised as from October 6, 1951.
The State of Kerala came into being on November 1, 1956, and the appellant Was finally allotted Kerala with effect from October 24, 1956. On March 26, 1966, the respondent- State published the final integrated list of the Travancore-Cochin and Madras personnel of the Judicial Officers as on November 1, 1956, showing respondents 6 and 7, whose dates of commencement of continuous service were July 20, 1951, and October 1. 1951, respectively, as senior to the appellant, on the basis that October 6, 1951, was assigned to him as the date of commencement of his con- tinous service being the date of his appointment to the post i11 the equated cate- gory as on November 1, 1956. The respondent-State, on October 20, 1959, also provided that some posts of District and Sub--divisional Magistrate of 'executive ori_gin' ~·o~]d be constit~ted as a separate service outside the civil judiciary, while being eh,g1ble for appointment as subordinale judgos and MunSiffs respectively.
'The appellant filed a writ petition in the High Court questioning inter aUa ( 1) the rank and place of seniority given to him in the final Jist on the gronnd that. the date of commencemen1 of his continuous service is May 26, 1951; and (2) the or~t:r of the respondent-State providing a special cadre for magistrates of executive or1g1n, ·on th~ ground that, if that order was implemented there was the likelihood . of su~ivisional Magistrates securing promotion over munsiffs with-longer service. The High Court dismissed the petition. · ' 868 SUPREME COURT REPORTS (1974] 2 s. c. R. In appeal to this Court, A HEW : ! I) (a) Rule 11 of the M;adras Rules deals with temporary appoint· nients. But it 1s not at all relevant for the purpose of fixing the seniority of the ~~ppellant. It is inapplicable to the appellant after his final allotment to the State vf . Kerala and after the al.
ear decision of the Government of India allowing the t'-tnefit of emergency Service in regard to seniority, which was aci;epted by the· Kerala Government. [875 H] ( b) Assuming that. the rule and the earlier decision of the Government of India in confirmity with the agreement with (he Chief Secretaries referring· to B pllrely stop. gap or fortuitous irrangements may be iff•oked, they are inapplicable· to the appellant, because, it cannot be held that the appellant's service is either tilled 'owing to an emergency' or that it was held as a 'purely stop-gap or fortuitous ;1rran~ement. ' The appellant had been appointed in a regular manner through the Pt. 1blic Service Commissian and his appointment could not have been made as a 'purely stop-s:ap or fortuitous' one. The Government of India had also acCcpted tl:). e position tltat an allotted employee should not suffer any disadvantage if he . "OQl\I not.. llave been subJe~ted to ~like haudicap in his parent State.
The cones·· Ci: portdertce lietween the Madras and Kerala Governments after the Central Govern· ment communicated its decision that tho allocated officers should be allowed the- benefit of emergency service. in regard to seniority, showed that the position in· ~1adras State was that continuous service of the officer, whether regular, temp(). rary or emergency, would have been tak,en into ac:count for the purpose of seniQ- rity. The appellant had been in continuous service from May 26, 1951. There-· tore, the conclusion is irresistible, that the appellant was entitled to the assignment of May 26, 1951, for the purpose of senionty, and tho appellant in the connected appeal, would be entitled to the assignment of February 12, 1955. [876 C-0] D (1) There is no force in the contention reprding the reservation of tho see•- J'ate cadre for the District Magistrate ·and sub-divisional Magistrates of executive origin.
It is open to the State· Government to_ constitute as many cadres as' they choose according to administr~tive conyeμience and expediency. [876 H1 · (3) As regards tho appellant in the connected appeal he would not be entitled to an earlier date as the date <>f contlnuQUs lllPOlntment on the pound thal Ill otli~r junior to him who was provisionally allotted to the State of Kerala along E \Vith him at the initial stage when the new State was constituted was asaiped 1-7.. :1954 as his date of continuous service; because; the 'KLM principle' was not applicable to that appellant. According to . the principle-the senionty ef tbC. Travancore•personnel· &S':betweCn thc~lves, or of tho O>chin ~rsonnel_, u htween . tbemsclY,a _could·. not di! tur~ . while detemiining the relative seniority . o( ! he TravanCore aiid COchin pcnonnel ·"in any class. But the officer who Was JU! Ubr 10 :tbC appell~t had' ari'anged fOr a m~tual transfer with an officer from Madrns and could not.
be held to be In service m Kerala for the purpose of the final ·integrated· list. · The_ question. of int tr se seniority cannot ansc when there is F nothing to . -fix such inttr se seniority of the appellant vis-apvis his junior. Th«e· fOfe the" benefit of the principle canitot-. be claimed by the appellant. [877C; R78B] CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2629 & 2630 of 1969. From the judgment and order dated the 2nd April, 1969 of the G Kerala High Court at Ernakulam in Original Petition Nos. 27 cb!! t· area · would be constituted as a separate semce outside the CiYJI Judiciary iio as· to enable the incumbents to continue in their poats {vide Ext. P-21 ); On the same date; the Government of Kerala ·passed an order under Article 234 of the Constitution by which the :r salaried Magisterial Officers of the former Travaocore-Cochin S\ate in ·. lhe ca!
t'SQries of District Muosiffs and Sub-Divisional Ma$istrlltes ~ made· eligible for appointment to the categories of Subordinate ,)"ljlfge_s and 0 Munsift's respectively (vide Ext. P-27). The appellant preferred an appeal B! lllinst the order (Ext. P-21) on October 20, 1959 (vide ·J3it. P·22). He pointed out that if the afores;iid order (Ext. P-21) WJS implemented there was likelihood of the Sub- G Divisioo;il Magistrates who had got far less service than that of tho Munsiffs 5ecurin! J promotion over such Muosiffs. The Kerala Gov- ernment passed a finiil order regarding the equation of posts in the judiciary on July 24, 1961 (vide Ext. P-23) and informed. the. appellant that the appeals had been rejected by the Government of Isldia. The Government of Kerala published the preliminary inte- gial~ list c( Judicial Oflicers on April 24, 1962 (vide Ext. P-24~. H 1'h! l appellant preferred an appeal _against this list (vid! ' Ext. P-2S).
· OUiet officers also filed representations and appeals agamst th. e same' . In . die preJimioa. ry integrated gradation-list of the Travancore-Cochin and Madras personnel as on November 1, 1956, the appellant 'llllll 812,, SllPll. EME COURT 11. EPOll. TS · J1974) 2 S. C. ll. I shown,agW:ist serial. NC>: 44 and his date of commen=ent of ~i>nti- A nuoas sernce as well as the date of appointment to the post of equated category was shown as May 26, 1951. Respondents 6 and ? were . shown ~low him against seritJ ·Nos. 46 and 4 7 respectively m the list. Thell" dates of co=encement . of continuous. service are July 20, 1951 and October 1, 1951 respectively and the same are the. ,dates of aJ'pointment to the post of equated category in. the list. After publication of the preliminary integrated list, the Government B of_Kerala issiied twq orders on. May 16, 1962 an enflind the> GOvemm:! lt of Kerala (vide E.. -t. P·32 · ~ ~ 1, 1962}. 0n· the same ~1:J:s:3ua there were twp kucn fldm lhe Gov.
cmment -0f Madras. to . the ·Kcrata Ge>vcrnme:xit ! ~ E1. \s. p. 34 -dated . July ZJ, 1963 and P-35 dated Ncm:mbcr 7. t! l. 6l) ,to ~ Seerctary, Allotted Ayricultural . om=· Associalioo. ~ C;Wcut. Th~ JCerala . Qovernmellt "'°'" on F~bruaiy ll, 1966, fra. llled cctlain . ad-boc:' rules (vide Ext. P-28) for absorplion ,of -CriI:l. illal :lid: Illdicial Officers of the Travancore ry as. on November 1, _1256. ~ ! he:~ ' c D - . DAMODARAN. V. KERALA (Goswami,/. ) backgl'ound, the appellant filed a writ application in the High Court t:I. ~ala praying ~or restrainin! l ~ State _Government and the -~ of the High Court from nnplemenling Ext. P-31, the fi. nal list, and to award to the appellant appropriate rank and· seni()rify iabove respondents 6 and 7, amongst other prayeis. His appllcation came. up before a Full Bench of the High Court and the same was rejected. The respondents were impleaded in the High Court 'in a representative capacity and the High Court's order under or. I r. 8, CM!
Procedure Cod~, were obtained and the notice was published in the newspaper. Several questions were ·raised. before the High Court, but 1he aP. Pdlant here has made two main submissions : . (I l His seniority in service in the integrated judicial service in Kera! a should be counted from May, 26, 195 I, the date on which he joined service and from which he has contimlously been working. (2) There is no justification in. law for creation of a separate cadre for Magistrates of the executive origin and for reserving four posts of District Magistrates, . CKC~vely in favour of Sub-Divisional Ma&istrates "- C&CCUtive origin. 1be ~~evance is that he should have been assigned May 26; l~I 'i ·· of October ·6, 1951. Itis clear that under 1CCtion 115(5) Of ·the Act "the Central Government may by order establish ODii or more Advisory Committees for the purpose of assistina it, in E regard to- F (a) the division and integration of the seryiqes am<>! )g the.
' new States and the ·States · Of Andhta Prades! i and: Mi. dtas; and · · · · · · ib) the ensutjng of fair and equitable · treatnient -to all · · persons affected by the provisions ()ftl! IS section iillil' the proper consideration· of any representation made by such persons". Under iection 117 ()f th. e Act, "the Central Government miiy at 'lln)' ti! ne ~ore of after . the aJIP uld be observed with regard to the ,1ntegtatjpn W(ll'k· · tlie H GovelmlCllt of India thereafter info~ . the State (lov~ment that Ibey -~ decided ·that the work of -integration of 5crvi~ . tb~!! ld be dealt. ~f'ilb :jly t1': State Governmcnta in· tbe light qf ~netl\1 . l'r. iJl! :iples elrelff ~ided in . the llllllh! I Of ~ Cltiot ~~~ocs •.. W•th \t~td 874 SUPREME COURT REPORTS [1974] 2 S. C. R. tp the pr~ciple for d~termining equation of posts and relative seniority, the followmg conclus10ns were· reached at the conference f '. llie; Act IJ' ! I appointed under this rule shall.
not be regarded as a proba- tioner in the serVice or be entitled-by . reason only Or such appointment to any preferential claim to future · apPQintment to the service". . The High Court accepted this submission when it observed as . follov. s :- "The apPQintment under rule . 11 ( 2) is a · temporary uPPQintment and it is s0 stated in the 'l'Qle itself. ApPOint~ ment under rule 11 ( 3) also . is a temporary lippotnll! lent though this can be even· of persons who dti not ·figure. ·Jlt all in any select list prepare e made as a temporary measure as has been mentioned in ,die letter of_ appointment it. self. We are, ho"'. ever, unable to accept this submission . as correct. It ' is common ground ! hat the appellant" has E been' app0inted in a: regular manner through the Public Se::vice Com- mis$iol) 3\ld his . llPpointme. nt cannot by any stretch of imagination be made to fill a "purely stop-gap or fortuitous" vacuum. AA noticed earlier, .
the Government of India has accepted the f'OSition··that an ~llotte a like handicap in. his ~nt~. ' It is ,dear from tit~ position taken by the ll;fadras . Oovernment. that th~ apj)j)ll"Dt F would have gqt the. be! l;fit . of his. GOntmuous 8PJ>? 1Dlment -~ ~_! ldras w. e. f. May 26, '195. 1 (V! de Ext. P. -34). That be111g the poSit1on tlie submissions of (he learni;d counsel for the . respondents ar~ of no a,vail. We ho~d that the appellant should be given the benefit o! his sepj6rity reckonmg · his continilO\ls app a'r. ate:ctltltl! · Of DjM o advanced in his case. For the same reasons the appellant in. this appeal will be entitled to assignment of 12th F~bruary, 19$5, as the date of contmuous employment of his serv1c~ after allotment to·. •h• Kerala State for the purpose of his seniority. The learned counsel, however, additionally contends that he should have the berieftt of what is described as the K. L. M. Principle in.
the following circum· stances : · One Sethu Madhavan, who is admittedly junior to . the appellant, was. provisionally allotted to the State of Kerala along with the appel- lant a1 the· initial stage when the new State was co11stituted. Later on; .. however, Sethu Madhavan arranged a niutual transfer with a Jtidi- clal, Officer froltl"· Madras who desired to take transfer to Kerala and for: that . reason his provisional allotment was cancelled and he was. not' finally allotted to Kerala. In the final integration list Sethu Madhavan's name, therefore, does not appear. · If S&thu Madhavan had remained. in Kerala, the position of the a:ppellant in the liSt sight have been different, since Sethu Madhavan'& date of. continuous service is 1-7-1954; But the final list will-now have to be· judged without taking . note of Sethu· Madhavan wl)o· ! lad already left the State. It is submitted . that since tbe final ! is\ has been pi'ep11ted as on 1-11-1956, the appellant should get .
the ·benefit of. his-dat\'. Since, however, Sethu Madhavan cannot be held to be in service ·1n Kerala for the purpose of the final integrated· list;• the appellant is not entitled to assignment of his date. We may now describe wh~t the K. L. M. Principle is. The expres- sl! m 'K. L. M. ·:principle'· which came into exist. ence in the Travancore- Cochin State by an order dated 27th September, 1950, has been des- criboJ in the following words by· the High Court in the judgment : _ "The relative seniority of the Travancore and Cochin personnel in any ~lass. or grade in the common 'eniority list will be determined with reference to the date of ccmn. ence- ment of continuous service in the same. or similar class or grade of posts subject, however, to the condition that the . seniority of the Travancore personnel as between themselves or of the Cocl)in personnel as between themsel~es should not thereby be disturbed".
Dealing with the point the High Court observed as follows : ;'Though the said Sethu Madhavan co11. 1menco~ ~rvice earliedn the State of Madras he was admittedly iuruor to the petitioner and therefore it will become necessary for ·settling the inter se seniority of the petitioner vii-a-vis &! hu MaJha\lan to assign to the petitioner in integrated gradauon list a place above the said Sethu Madhavan; This is so because the principle settled as early as 29th' December 1956 · by 0. 0. of that date clearly provided that in effecting inte- gration the inter se seniority of persons in either branch that <! 78 SUPREME COURT REPORTS (1974] 2 S. C. ll. are integrated should not be affected. The question however cannot arise when there is no need to fix the inter se seniority of the petitioner vis·a-vis the said Sethu Madhavan" We agree with the above observations of tile l{igb Court and reject th~ submission of the appellant that he is entitled to the benefit A of the K. L. M.
Principle on the basis of the provisional allotment of B Scthu Madhavan. It may be mentioned that we had allowed without objection from the respondent CMP No. 9761 of 1973 and admitted the documents menlion~ therein. In tile result the appeals are partly allowed. The 1st and 2nd respondents are directed to assign to the appellant, C. P Damodaran Nayar, the date May 26, 1951, by substituting the same for October. 6, 1951, in the final integration list and to give him the consequential beriefits to which he may be entitled by virtue of this assignment. The aforesaid respondents are also directed to assign to ;the appellant, P. S. Menon, the date February 12, 1956, in the final integration list aod to give him such consequential relief as he m•v be entitled to in. pursuance of the new assigned date. The judgment of the High Court i_s set aside only to the extent indicated above. The appellants are entitled to costs in this Court. . Two sets only. Civil Appeals Nos.
304 and 305 of 1972 are identical by the same two appellants and they stand disposed of accordingly by this• (odgm. Ur. · V. P. S. Appealr p11r1/y al/owed. c D E
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