PETITIONER: C. P. DAMODARAN NAYAR AND P. S. MENON Vs. RESPONDENT: STATE OF KERALA AND OTHERS DATE OF JUDGMENT20/12/1973 BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. REDDY, P. JAGANMOHAN CITATION: 1974 AIR 1343 1974 SCR (2) 867 1974 SCC (4) 325 CITATOR INFO : R 1981 SC2181 (27,28) D 1987 SC 424 (23) ACT: States Reorganisation Act, 1956, Ss. 115 and 117-Madras State judicial Service Rules, 1953, r. 11-Applicability to officers allotted to Kerala-"Seniority according to decision of Central Governmental-Right of State Government,to constitute new cadres--'KLM' principle and its scope. HEADNOTE: Under s. 115(5) of the States Reorganisation Act, 1956., the Central Government 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 Stites, and (b) the ensuring of fair and equitable treatment to all persons affected. Under s. 177 the Central Government may give such directions 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 such directions. Accordingly, a meeting of the Chief Secretaries of the various States that were to be effected by the reorganisation was held in May, 1956, at the invitation of the Central Government, and certain decisions were taken as to the general principles that should be observed with regard to the integration work The Central Government thereafter informed the State Governments that they had decided that the work of integration of services, equation of posts and relative seniority should be dealt with by the State Governments in the light of those general principles. In 1962, the Central Government, after considering the representations of the officers made under s. 115(5) of the Act, in modification of the earlier principle excluding periods for which an appointment is held as a purely 'stop gap or' fortuitous arrangement in fixing seniority, decided that the officers allocated to Kerala State from the former Madras State may be allowed benefit of emergency service towards seniority in the equated category if such service would have been regularised from the date of their emergency appointment and counted for seniority in Madras, on 1st November, 1956, had those officers remained in Madras. The respondent-State accepted this decision of the 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 continuous service since then. Consequent upon a decision of the Supreme Court of India, 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 appellant 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 continuous service being-the date of his appointment to the post in the equated category 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 origin' would be constituted as a separate service outside the civil judiciary, while being eligible for appointment as subordinate judges and Munsiffs respectively. The appellant filed a writ petition in the High Court questioning inter alia (1) the rank and place of seniority given to him in the final list, on the ground that the date of commencement of his continuous service is May 26, 1951; and (2) the order of the respondent-State providing a special cadre for magistrates of executive origin, on the ground that, if that order was implemented there was the likelihood of sub- divisional Magistrates securing promotion over munsiffs with longer service. The High Court dismissed the petition.- 868 in appeal to this Court, HELD : (1) (a) Rule II of the Madras Rules deals with temporary appointments. But it is not at all relevant for the purpose of fixing the seniority of the appellant. it is inapplicable to the appellant alter his final allotment to the State of kerala and after the clear decision of the Government of India allowing the benefit of emergency service in regard to seniority, which was accepted by the Kerala Government. [875 H] (b) Assuming that the rule and the earlier decision of the Government of India in conformity with the agreement with the Chief Secretaries referring to purely stop-gap or fortuitous arrangements may be invoked, they are inapplicable to the appellant, because, it cannot be held that the appellant's service is either filled 'owing to an emergency' or that it was held as a 'purely stop-gap or fortuitous arrangement.' The appellant had been appointed in a regular manner through the public Service Commission and his appointment could not have been made as a purely stop- gap or fortuitous' one. The Government of India had also accepted the position that an allotted employee should not suffer any disadvantage if he would not have been subjected to a like handicap in his parent State. The correspondence between the Madras and Kerala Governments after the Central Government communicated its decision that the allocated officers should be allowed the benefit of emergency service in regard to seniority, showed that the position in Madras State was that continuous service of the officer, whether regular, temporary or emergency, would have been taken into account for the purpose of seniority. The appellant had been in continuous service from May 26, 1951. Therefore, the conclusion is irresistible, that the appellant was entitled to the assignment of May 26, 1951, for the purpose of seniority, and the appellant in the connected appeal, would be entitled to the assignment of February 12, 1955.[876 C-G] (2) There is no force in the contention regarding the reservation of the separate 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 administrative convenience and expediency. [876 H] (3) As regards the appellant in the connected appeal he would not be entitled to an earlier date as the date of continuous appointment on the ground that an officer junior to him who was provisionally allotted to the State of Kerala along with him at initial stage when the new State was constituted was assigned 1-7-1954 as his date of continuous service; because, the 'KLM principle' was not applicable to that appellant. According to the principle the seniority of the Travancore personnel as between themselves, or of the Cochin personnel as between themselves could not disturbed while' determining the relative seniority of the Travancore and Cochin personnel in any class. But the officer who was junior to the appellant had arranged for a mutual transfer with an officer from Madras 'and could not be held to be in service in Kerala for the purpose of the final integrated list. The question of inter se seniority cannot arise when there is nothing. to fix such inter se seniority of the appellant vis-a-vis his junior. Therefore the benefit of the principle cannot, be claimed by the appellant. [877C] JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2629 & 2630
of 1969.
From the judgment and order dated the 2nd April,. 1969 of
the Kerala High Court at Ernakulam in Original Petition Nos.
2709 and 2708 of 1966, and
Civil Appeal Nos. 304 & 305 of 1972.
Appeals by special leave from the judgment and order dated
the 2nd April, 1969 of the Kerala High Court in Original
Petition Nos. 2708 of 1966 and
Sardar Bahadur, and C. P. Damodaran Nayar, appellant
appeared in person( in C.As 2629/69 & 305/72)
869
K. T. Harindra Nath and Vishnu Bahadur Saharya, for the
appellant (in C.A. 2630/69).
V. A. Seiyid Mohmud and K. C. Dua, for respondent Nos. 1 &
4 (in C. A. 2629/69 and respondent Nos. 1 & 3 (in C.A.
2630/69).
Gobind Das and S. P. Nayar, for respondent No. 2 (in C.As.
2629 and 2630).
A. V. Rangam and A. Subhashini, for respondent No. 3 (in
C.A. 2629/69).
P. C. Chandi, for respondent No. 3 (in C.A. 304/72) and
respondents Nos. 1 & 4 (in C.A. 305/72).
K. M. K. Nair, for respondent No. 5 (in C.A.A. 2629/69).
S. Gopalakrishnan, for respondent Nos. 6&7 (in C.A. 2629/
69).
The Judgment of the Court was delivered by
GOSWAMI, J. These appeals by certificate are directed
against the judgment of the Kerala High Court in several
writ applications filed there challenging the final
integration list of judicial officers allotted to Kerala
State under the States Reorganisation Act, 1956, briefly the
Act. The appellant in Civil Appeal No. 2629 of 1969, which
we will take first, was a practicing Advocate. He was
recruited along with 82 others by the Madras Public Service
Commission, briefly the Commission, and was temporarily
appointed as a District Munsiff by the Madras Government on
November 25, 1950. This appointment was under rule 7A of
the Madras State Judicial Service Rules, ‘then in force.
The Madras High Court posted him for training which
commenced on January 16, 1951 and while undergoing training
he was posted as District Munsiff at Calicut where he took
charge’ of this post on May 26, 1951. Since then he has been
in continuous service as Munsiff, subordinate Judge,
District Magistrate and as District Judge. One B.
Venkataramans, who had not been selected as District Munsiff
along with the appellant and ‘others ‘in 1950, challenged
the selection made by the Commission in a writ petition
before this Court. This Court allowed the petition and the
decision is reported in V. Venkataramana v. The State of
Madras & ‘Another’ (1) :This Court held that the Communal G.
0. of the Madras Government which besides making reservation
of posts for Harijans and backward Hindus, as sanctioned by
cl. (4) of Art. 16, also made reservation of posts for other
communities viz. Muslims, Christians, Non-Brabmin Hindus
and Brahmins was repugnant to the provisions of Art. 16 and
was as such void and illegal. The Court, however, did not
cancel all the appointments made during the year but
directed the Government to consider and dispose of the
application of Venkataramana on its merits and without
applying the, rule of communal rotation. It may be
mentioned that the appellants .here and other successful
candidates were not joined as respondents in ‘the said writ
petition before this Court. Venkataramana was
(1) A.I.R. 1951
870
accordingly selected and appointed as District Munsiff and
he took charge of his office on October 6, 1951, Consequent
upon the decision in that case the Madras State Judicial
Service Rules (briefly the Madras Rules) were framed on
October 6, 1953 under Article 234 read with Article 309 of
the Constitution. These Rules came into effect
retrospectively from March 22, 1951. It is averred that
appointment of the appellant is thus under rule 11(2) of the
Madras Rules. On November 2, 1953, the Madras Government
directed that the services of the appellant along with other
candidates be, regularised w.e.f. October 6, 1951, the same
date from which Venkataramana’s appointment has been so done
(vide Ext. P-7). It is also mentioned in this order that
the 82 officers mentioned in the schedule to the order
including Venkataramana (serial No. 27) and the appellant
(serial No. 72) will commence probation from that date. The
Government, however, sanctioned increment in the time scale
to the appellant and the other District Munsiffs appointed
in 1950 and 1951 from the date of commencement of continuous
service (vide Ext. P-6). Consequent upon the passing of
the States Reorganisation Act on August 31, 1956, 51
judicial officers including the appellant belonging to
different cadres like District Judge, District Magistrate,
Sub-Judge, Munsiff and Sub-Magistrate were transferred from
the Madras State to the Kerala State on September 11, 1956.
The appellant was finally allotted to Kerala w.e.f. October
24, 1956, as per order of the Government of India dated
August 24, 1960, under the Act. The State of Kerala was
brought into being w.e.f. November 1, 1956. We may note
here that the new Kerala State was formed under section 8 of
the Act comprising the territories of the existing State of
Travancore-Cochin, excluding the territories transferred to
the State of Madras by section 4; and the territories
comprised in Malabar district, excluding the islands of
Laccadive and Minicoy and Kasaragod taluk of South Kanara
district.
The Government of Kerala passed an order (Ext. P-16)
regarding reorganisation of judicial services. After the
reorganisation of States, principles were evolved and
formulated by the Central Government at the conference of
Chief Secretaries of the different States regarding
integration of services. The Kerala Government framed
principles and procedures regarding integration of services
of Travancore-Cochin personnel with the personnel allotted
from Madras (vide Ext. P-13). The Madras Government also
framed general principles for integration of services by
their order dated July. 17, 1957 (vide Ext. P-14). The
Government of Kerala issued orders regarding equation of
posts in the Judicial Department for the purpose of
integration of services on May 27, 1958 (vide Ext. P-17).
The equation was as follows
“Travancore-Cochin
(1) District Judge-I Grade- District Judges-II Grade-Rs.
Rs. 800-1000. 1000-1800.
District & Sessions Judge, District Magistrate. (Judl.)
II Grade-Rs. 500-800. Grade-500-700 plus Spl.
pay Rs. 50/-
871
(iii) District Magistrate Sub Judges on-Rs. 550- 700.
Grade- Rs. 500-800.
Addl. District and Sessions
Judges and Sub-judges
Grade-Rs. 450-600,
(iv) Sub Divisional Magistrates District Munsiff and Sub
Divisional Magistrate Rs. 300-700.
I Grade-Rs. 450-600.
Munsiffs and Sub-Divisional Magistrate
Grade II on-Rs. 250-500.
(v) Sub Magistrate
Rs. 200- 300.”
Sub Magistrates Rs. 200-300.
The appellant preferred an appeal against this order through
the Kerala High Court and the Government of Kerala to the
Advisory Committee constituted by the Central Government
under section, 115(5) of the Act challenging among other
things that the principles evolved for the equation, of
posts were illegal and unjust. Meanwhile the Government of
Kerala on September 24, 1959, ordered that it would not be
proper to equate the District Magistrates and the Sub-
Divisional Magistrates of Grades I and II of ‘executive
origin’ belonging to the erstwhile Travancore-Cochin State
with the Civil Judicial Officers and that the same should be
kept separate until the Magisterial Officers were induced
into the Civil Judiciary in the manner prescribed under
Article 234 of the Constitution. By the same order it was
provided that the three posts of the District Magistrates
(actually four since one was omitted through mistake) and
eight posts of Sub-Divisional Magistrates of the Travancore-
Cochin area would be constituted as a separate service
outside the Civil Judiciary so as to enable the incumbents
to continue in their posts (vide Ext. P-21). On the same
date, the Government of Kerala passed an order under Article
234 of the Constitution by which the salaried Magisterial
Officers of the former Travancore-Cochin State in the
categories of District Munsiffs and Sub-Divisional
Magistrates were made eligible for appointment to the
categories of Subordinate Judges and Munsiffs respectively
(vide Ext. P-27). The appellant preferred an appeal
against the order (Ext. P-21) on October, 20 1959 (vide
Ext. P-22). He pointed out that if the aforesaid order
(Ext. P-21) was implemented there was likelihood of the
Sub-Divisional Magistrates who had got far less service than
that of the Munsiffs securing promotion over such Munsiffs.
The Kerala Government passed a final 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 India. The Government of
Kerala published the preliminary integrated list of Judicial
Officers on April 24, 1962 (vide Ext.P-24). The appellant
preferred an appeal against this list (vide Ext. P-25).
Other officers also filed representations and appeals
against the same. In the, preliminary integrated gradation
list of the Travancore-Cochin and Madras personnel as Ion
November 1, 1956, the appellant was
872
shown against serial No. 44 and his date of commencement of
continuous service as well as the date of appointment to the
post of equated category was shown as May 26, 1951.
Respondents 6 and 7 were shown below him against serial Nos.
46 and 47 respectively in the list. Their dates of
commencement of continuous service are July 20, 1951 and
October 1, 1951 respectively and the same are the dates of
appointment to the post of equated category in the list.
After publication of the preliminary integrated list, the
Government of Kerala issued two orders on May 16, 1962 and
May 10, 1963 (vide Exts. R-1 and R.2) respectively. R-2
has superseded the earlier order R-1 and some other orders.
We may quote the relevant portion of the order in Ext. R-2
which rans as follows
“The Government of India have considered the
representations of the officers and have
decided as follows :-
(i) The officers allotted to Kerala from
Madras may be allowed the benefit of emergency
service towards seniority in the equated
category if such service would have been
regularised from the- date of their emergency
appointment and counted for inter-state
seniority in integration in Madras on 1-11-
1956 had they remained in Madras.
X. x x x
This decision of the Government of India was accepted by the
Kerala Government. On the subject of taking into account
the emergency service there was correspondence between the
Central Government and the Government of Kerala (vide Ext.
P-32 dated March 1, 1962) On the same subject matter there
were two letters from the government of Madras addressed to
the Kerala Government (vide Exts. p-34 dated July 20, 1963
and P-35 dated November 7, 1963) to the Secretary allotted
Agricultural Officers’ Association, certain ad-hoc rules
(vide Ext.P-28) for absorption of Criminal side Judicial
Officers of the Travancore-Cochin Branch who’ were kept in a
separate cadre. These rules inter alia provided that for
the purpose of determining seniority the date of
commencement of continuous service in the post of District
Magistrate shall be deemed to be, the date of first
appointment to, the category of Sub-Judge. The appellants’
appeals were ultimately rejected-by the Government- of
India. On-March 26, 1966, the Government-of Kerala
published the final integrated list of the Travancore-Cochin
and Madras personnel of the Judicial Officers as on November
1, 1956 (vide Ext. P-31) showing respondents 6 and 7, who
were junior to him as per the, preliminary integrated list,
now placed above him in, the final list In the preliminary
list although his date of commencement of continuous service
was shown as May 26, 1951, he was assigned in final list
October 6, 1951 being the date of his appointment- to the
post in the equated category as on November 1, 1956. In the
above
873
background, the appellant filed a writ application in the
High, Court of Kerala praying for restraining the State
Government and the Registrar of the High Court from
implementing Ext. P-31, the final. list, and to award to
the appellant appropriate rank and seniority above
respondents 6 and 7, amongst other prayers. His application
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.1 r.8, Civil Procedure Code, were obtained
and the notice was published in the newspaper.
Several questions were raised before the High Court, but the
appellant here has made two main submissions :
(1) His seniority in service in the
integrated judicial service in Kerala should
be counted from May, 26, 1951, the date on
which he joined service and from which he has
continuously 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, exclusively in
favour of Sub-Divisional Magistrates of
executive origin.
The appellant’s grievance is that he should have been
assigned May 26, 1951 instead of October 6, 1951. It is
clear that under section 115(5) of the Act “the Central
Government may by order establish one or more Advisory
Committees for the purpose of assisting it in regard to-
(a) the division and integration of the
services among the new States 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 representation made’ by
such persons”.
Under section 1 17 of the Act, “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”. In accordance with ‘lie
provisions of this Act, a meeting of the Chief Secretaries
of the, various States that were to be affected by the
reorganisation, was held on May 18-19, 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. The
government-of India thereafter informed the State Government
that they had decided that the work of integration of
services should be dealt with by the State Governments in
the light of general principles already decided in the
meaning of the Chief Secretaries. With regard
874
to the principle for,determining equation of posts and
relative seniority, the following conclusions were reached
at the conference of the Chief Secretaries :
“It was agreed that in determining the
equation of posts, ,the following factors
should be borne in mind
(i) the nature and duties of a post;
(ii) the responsibilities and powers
exercised by the officer holding a post; the
extent of territorial or other charge held or
responsibilities discharged;
(iii) the minimum. qualifications, if any,
prescribed for recruitment to the post;
(iv) the salary of the post;
It was agreed that in determining relative seniority is
between two persons holding posts declared equivalent to
each other, and drawn from different States, the following
points should be taken, into account
(i) Length of Continuous service, whether
temporary or permanent, in a particular grade;
this should exclude periods for which an
appointment is held in, a purely stop-gap or
fortuitous arrangement;
(ii) age of the person; other factors being
equal, for instance, seniority may be
determined on the basis of age.
Note : It was also. agreed that as far as
possible, the inter se senority of officer
drawn from the same State should not be
disturbed”.
This position was altered as already noted earlier when the
Central Government, after considering the representations of
the officers made under section 115(5) of: the- Act decided
that “the officers allocated to Kerala State from former
Madras, may be allowed the benefit of emergency service
towards seniority in the equated category if such services
towards service(sic) would have been registered from the
date of their emergency- appointment and counted for
inter-state seniority in, integration on 1st November
1956, hadthese officers remained in Madras ” (vide Ext. P-
33 dated 16-2-1963 which modified Ext. P-32 dated 1-3-1962)
We have also referred to a letter from the Government of
Madras to the Kerala Government dated to a letter from 1963 (Ext.
P34) wherefrom the following extract is relevant:-
” According to sub-paragraph (2) of
paragraph 1 of the said G.O. the date from
which an allottee to this State from the
former Travancore-Cochin State was
continuously holding the corresponding post
in the former Travancore-Cochin State is taken
into account for the purpose of fixing his
seniority in the equated cadre in this state.
Therefore for (3)of paragraph 1 of said
G.O. only continuous service
875
whether regular, temporary or emergency of the
allottees is taken into account”.
Hence the position in Madras is that
continuous service of the appellant “whether
regular, temporary or emergency” would have
been taken into account for the purpose of
seniority. It is also clear and not even
disputed that the appellant has been in
continuous service from May 26, 1951. That
being the position, the conclusion is
irresistible in view of the Government’s
decision (vide Ext. P-33) that the appellant
was entitled to the assignment of May 26, 1951
for the purpose of his seniority..
Dr. Syed Mohamad, on behalf of the 1st
respondent, submits that the question has to
be decided with reference to rule 11(2) of the
Madras Rules. The same may be set out :
11(2) : “Where the appointment of a person as
District Munsiff in accordance with these
rules would involve, excessive expenditure on
travelling allowance or exceptional admi-
nistrative inconvenience, the Governor may
appoint any other person in the list of
approved candidates. A person appointed under
this rule shall not be regarded as a proba-
tioner in the service or be entitled by reason
only of such appointment to any preferential
claim to future appointment to the service”.
“The High Court accepted this submission when
it observed as follows:–
“The appointment under rule 11(2) is a
temporary appointment and it is so stated in
the rule itself. Appointment under rule 11(3)
also is a temporary appointment though this
can be even of persons who do not figure at
all in any select list prepared after the
selection by die Public Service Commission. A
reading of the rule–rule 11(3) of the Madras
State Judicial Service Rules–shows that this
rule will be resorted to in cases of
emergency. Suffice to say at this stage that
service rendered in a temporary capacity by
virtue of appointments under rules 11(2) or
11(3), at any rate the whole of it, did not
necessarily count for the purpose of inter se
seniority among the persons who belonged to
the particular service in the State or Madras.
The Government of India decided that this
service which did not count for inter se
seniority among the Madras personnel in the
State of Madras and did not count for inter-
State seniority in the matter of integration
of the personnel that remained in the State of
Madras with those that have been allotted to
the State of Madras, will not count for inter-
State seniority of personnel allotted from the
State of Madras to the State of Kerala, for,
the purpose of integration with the
Travancore-Cochin personnel-“.
It is true that rule in deals with temporary appointments.:
Rule 11(3), however, is not at- all relevant for the purpose
of the present case
876
The question that arises for consideration is that whether
after final allotment of the appellant under the Act to the
State of Kerala, the application of the Madras Rules would
be at all relevant in face of a clear decision of the
Government of India made under the Act. We have to hold in
the negative. Apart from that, the Government of India took
a decision which also the Kerala Government had accepted
(vide Ext. R-2) as already set out. In this view of the
matter we are Unable to agree with the High Court that the
appellant had been correctly assigned his date October 6,
1951 instead of May 26, 1951.
It is next submitted by the learned counsel for the 1st
respondent that the appointment of the appellant was “purely
stop-gap or fortuitous arrangement” as mentioned in the
principles agreed at the meeting of ,the Chief Secretaries.
He also tries to reinforce his argument by referring to rule
11(3) which provides that “where it is necessary in the
public interest owing to an emergency which has arisen to
fill immediately a vacancy in, the category of District
Munsifs…….. Assuming that rule 11(3) may be invoked and
the earlier decision of the Government of India in
conformity with the agreement of the Chief ‘Secretaries
referring to “purely stop-gap or fortuitous arrangement” are
applicable, we are unable to agree that the appellant’s
service is, either filled “owing to an: emergency” or that
the same is held in a “purely stop-gap. or fortuitous
arrangement”. The learned counsel for the 1st respondent
followed by the counsel for the Union of India has submitted
that on account of the writ application by Venkataramana in
the High Court the appointment of the appellant had to be
made as a temporary measure as has been mentioned in the
letter of appointment itself. We are, however, unable to
accept this been appointed in a regular manner through the
Public Service Commission and his-appointment cannot by any
stretch of imagination be made to fill a “‘purely stop-gap
or fortuitous” vacuum. As noticed earlier, the Government
of India has accepted the position that an allotted employee
should not suffer any disadvantage if he Would not have been
subjected to a like handicap in his parent State. It is
clear from the position taken by the Madras ‘ Government
that the appellant would have got the benefit of his
continuous appointment’ in Madras w.e.f. May 26, 1951 (Vide
Ext. P-34). That being the position the submissions of the
learned counsel for the respondents are of no avail. we hold
that he appellant should be given the benefit of his
seniority reckoning his continuous appointment and assigning
the date. 26th May 1951 and substituting the same in the
final list for 6th October, 1951.
With regard to the. second submission of the appellant
regarding the reservation of a separate cadre e for the
District Magistrate And Sub-Divisional Magistrates of
executive origin, we do not see any force in his contention.
It is open, to the, State Government to constitute as many
cadres as they choose according to administrative
convenience and expediency .There is, therefore, no merit
in the objection to the creation of a separate cadre of
District Magistrates and sub-Divisional Magistrates of
executive origin. The submission of the appellant is
without any force.
purchases and there would be no disincentive to the- dealers
to desist from selling goods to unregistered purchasers in
course of inter-State trade. The object of’ the law
apparently is to deter inter-State sales to unregistered
dealers as such inter–State Sales would facilitate evasion
of tax. [984 C]
877
With regard to Civil Appeal No. 2630 of 1969 of P. S. Menon,
Sub-Judge, Quilon, the above submissions, which we
have dealt With, were also advanced in his case. For the
same reasons, the appellant in this appeal will be entitled
to assignment of 12th February, 1955, as the date of
continuous employment of his service after allotment to the
Kerala State for the purpose of his seniority. The learned
counsel, however, additionally contends that he should have
the benefit of what is described as the K.L.M. Principle in
the following circumstances :
One Sethu Madhavan, who is admittedly junior to the
appellant, was provisionally allotted to the State of Kerala
along with the appellant at the initial stage when the new
State was constituted. Later on however, Sethu Madhavan
arranged a mutual transfer with a Judicial Officer from
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 Sethu Madhavan had remained in Kerala, the position of
the appellant in the list sight have been different, since.
Sethu Madhavan’s date of continuous service is 1-7-1954.
But the final list will now have to be judged without taking
note of Sethu Madhavan who had already left the State. It
is submitted that since the final list has been prepared as
on 1-11-1956, the appellant should get the benefit of his
date. Since, however, Sethu Madhavan cannot be held be in
service in Kerala for the purpose of the final integrated
list the appellant is not entitled to assignment of his
date.
We may now describe what the K.L.M. Principle is. The
expression ‘K.L.M. Principle’ which came into existence in
the Travancore-Cochin State by an order dated 27th
September, 1950, has been described in the following words
by the High Court in the judgment
“The relative seniority of the Travancore and
Cochin personnel in any class or grade in the
common seniority list will be determined with
reference to the date of commencement 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 Cochin personnel as between themselves
should not thereby be disturbed”.
Dealing with the point the High Court observed
as follows
“Though the said Sethu Madhavan commenced
service earlier in the State of Madras he was
admittedly junior to the petitioner and
therefore it will become necessary for
settling the inter se seniority of the
petitioner vis-a-vis Sethu Madhavan to assign
to the petitioner in integrated gradation list
a place above the said Sethu Madhavan. This
is so because the principle settled as early
as 29th December 1956 by G.O. of that date
clearly provided that in effecting, inte-
gration the inter se seniority of persons in
either branch that
878
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 the High Court and
reject the submission of the appellant that he is entitled
to the benefit of the K.L.M. Principle on the basis of the
provisional allotment of Sethu Madhavan.
It may be mentioned that we had allowed without objection
from the respondent CMP No. 9761 of 1973 and admitted the
documents mentioned therein.
In the 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 benefits 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 and to give him such consequential relief
as-he may be entitled to in pursudance of the new assigned
date. The judgment of the High Court is 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
V.P.S. Appeals partly allowed.
879