{"id":114567,"date":"1973-12-20T00:00:00","date_gmt":"1973-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-p-damodaran-nayar-and-p-s-vs-state-of-kerala-and-others-on-20-december-1973"},"modified":"2018-02-10T19:56:40","modified_gmt":"2018-02-10T14:26:40","slug":"c-p-damodaran-nayar-and-p-s-vs-state-of-kerala-and-others-on-20-december-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-p-damodaran-nayar-and-p-s-vs-state-of-kerala-and-others-on-20-december-1973","title":{"rendered":"C. P. Damodaran Nayar And P. S. … vs State Of Kerala And Others on 20 December, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C. P. Damodaran Nayar And P. S. … vs State Of Kerala And Others on 20 December, 1973<\/div>\n
Equivalent citations: 1974 AIR 1343, \t\t 1974 SCR (2) 867<\/div>\n
Author: P Goswami<\/div>\n
Bench: Goswami, P.K.<\/div>\n
           PETITIONER:\nC.   P. DAMODARAN NAYAR AND P. S. MENON\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KERALA AND OTHERS\n\nDATE OF JUDGMENT20\/12\/1973\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nREDDY, P. JAGANMOHAN\n\nCITATION:\n 1974 AIR 1343\t\t  1974 SCR  (2) 867\n 1974 SCC  (4) 325\n CITATOR INFO :\n R\t    1981 SC2181\t (27,28)\n D\t    1987 SC 424\t (23)\n\n\nACT:\nStates\tReorganisation\tAct, 1956, Ss.\t115  and  117-Madras\nState  judicial Service Rules, 1953, r. 11-Applicability  to\nofficers allotted to Kerala-\"Seniority according to decision\nof   Central  Governmental-Right  of   State   Government,to\nconstitute new cadres--'KLM' principle and its scope.\n\n\n\nHEADNOTE:\nUnder s. 115(5) of the States Reorganisation Act, 1956., the\nCentral\t Government  may  establish  one  or  more  Advisory\nCommittees for the purpose of assisting it in regard to, (a)\nthe  division  and  integration of services  among  the\t new\nStites, and (b) the ensuring of fair and equitable treatment\nto   all  persons  affected.   Under  s.  177  the   Central\nGovernment  may\t give  such directions\tto  any\t such  State\nGovernment as may appear to be necessary for the purpose  of\ngiving\teffect\tto the provisions of the Act and  the  State\nGovernment shall comply with such directions.\tAccordingly,\na  meeting  of the Chief Secretaries of the  various  States\nthat  were to be effected by the reorganisation was held  in\nMay, 1956, at the invitation of the Central Government,\t and\ncertain\t decisions were taken as to the\t general  principles\nthat should be observed with regard to the integration\twork\nThe   Central  Government  thereafter  informed\t the   State\nGovernments   that  they  had  decided\tthat  the  work\t  of\nintegration  of\t services, equation of\tposts  and  relative\nseniority  should be dealt with by the State Governments  in\nthe light of those general principles.\tIn 1962, the Central\nGovernment,  after  considering the representations  of\t the\nofficers made under s. 115(5) of the Act, in modification of\nthe  earlier  principle\t excluding  periods  for  which\t  an\nappointment  is\t held as a purely 'stop gap  or'  fortuitous\narrangement  in fixing seniority, decided that the  officers\nallocated  to Kerala State from the former Madras State\t may\nbe allowed benefit of emergency service towards seniority in\nthe  equated  category\tif  such  service  would  have\tbeen\nregularised from the date of their emergency appointment and\ncounted for seniority in Madras, on 1st November, 1956,\t had\nthose  officers\t remained in Madras.   The  respondent-State\naccepted this decision of the Central Government.\nThe  appellant\twas selected as a District  Munsiff  by\t the\nMadras\tPublic Service Commission and was posted as such  on\nMay  26. 1951. and he has been in continuous  service  since\nthen.\tConsequent upon a decision of the Supreme  Court  of\nIndia,\tthe  Madras  State Judicial  Service  Rules  (Madras\nRules)\twere  framed in 1953, but were\tgiven  retrospective\neffect from March 1951, and the service of the appellant and\nothers\twas regularised as from October 6, 1951.  The  State\nof  Kerala  came  into being on November 1,  1956,  and\t the\nappellant  was\tfinally\t allotted Kerala  with\teffect\tfrom\nOctober\t 24, 1956.  On March 26, 1966, the respondent  State\npublished the final integrated list of the Travancore-Cochin\nand Madras personnel of the Judicial Officers as on November\n1,  1956,  showing  respondents\t 6 and\t7,  whose  dates  of\ncommencement  of continuous service were July 20, 1951,\t and\nOctober\t 1, 1951, respectively, as senior to the  appellant,\non  the basis that October 6, 1951, was assigned to  him  as\nthe date of commencement of his continuous service being-the\ndate of his appointment to the post in the equated  category\nas  on November 1, 1956.  The respondent-State,\t on  October\n20, 1959, also provided that some posts of District and Sub-\ndivisional   Magistrate\t of  'executive\t origin'  would\t  be\nconstituted   as  a  separate  service\toutside\t the   civil\njudiciary,   while   being  eligible  for   appointment\t  as\nsubordinate judges and Munsiffs respectively.  The appellant\nfiled  a writ petition in the High Court  questioning  inter\nalia (1) the rank and place of seniority given to him in the\nfinal  list, on the ground that the date of commencement  of\nhis continuous service is May 26, 1951; and (2) the order of\nthe   respondent-State\t providing  a  special\t cadre\t for\nmagistrates of executive origin, on the ground that, if that\norder  was  implemented\t there was the\tlikelihood  of\tsub-\ndivisional Magistrates securing promotion over munsiffs with\nlonger service.\t The High Court dismissed the petition.-\n\t       868\nin appeal to this Court,\nHELD  : (1) (a) Rule II of the Madras  Rules  deals\nwith temporary appointments.  But it is not at\tall\nrelevant for the purpose of fixing the seniority of\nthe  appellant. it is inapplicable to the  appellant  alter\nhis  final  allotment to the State of kerala and  after\t the\nclear  decision\t of  the Government of\tIndia  allowing\t the\nbenefit\t of emergency service in regard to seniority,  which\nwas accepted by the Kerala Government. [875 H]\n(b)  Assuming that the rule and the earlier decision of\t the\nGovernment  of India in conformity with the  agreement\twith\nthe  Chief  Secretaries\t referring  to\tpurely\tstop-gap  or\nfortuitous   arrangements   may\t  be   invoked,\t  they\t are\ninapplicable  to the appellant, because, it cannot  be\theld\nthat  the appellant's service is either filled 'owing to  an\nemergency'  or\tthat it was held as a  'purely\tstop-gap  or\nfortuitous arrangement.' The appellant had been appointed in\na  regular manner through the public Service Commission\t and\nhis  appointment could not have been made as a purely  stop-\ngap  or fortuitous' one.  The Government of India  had\talso\naccepted  the position that an allotted employee should\t not\nsuffer any disadvantage if he would not have been  subjected\nto a like handicap in his parent State.\t The  correspondence\nbetween the Madras and Kerala Governments after the  Central\nGovernment  communicated  its decision\tthat  the  allocated\nofficers should be allowed the benefit of emergency  service\nin  regard to seniority, showed that the position in  Madras\nState  was that continuous service of the  officer,  whether\nregular, temporary or emergency, would have been taken\tinto\naccount\t for  the purpose of seniority.\t The  appellant\t had\nbeen  in continuous service from May 26,  1951.\t  Therefore,\nthe  conclusion\t is  irresistible, that\t the  appellant\t was\nentitled to the assignment of May 26, 1951, for the  purpose\nof  seniority,\tand the appellant in the  connected  appeal,\nwould  be  entitled  to\t the  assignment  of  February\t 12,\n1955.[876 C-G]\n(2)  There  is\tno  force in the  contention  regarding\t the\nreservation   of  the  separate\t cadre\tfor   the   District\nMagistrate  and\t sub-divisional\t Magistrates  of   executive\norigin. It is open to the State Government to constitute  as\nmany  cadres  as  they Choose  according  to  administrative\nconvenience and expediency. [876 H]\n(3)  As\t regards  the appellant in the connected  appeal  he\nwould  not  be entitled to an earlier date as  the  date  of\ncontinuous appointment on the ground that an officer  junior\nto him who was provisionally allotted to the State of Kerala\nalong  with  him  at initial stage when the  new  State\t was\nconstituted was assigned 1-7-1954 as his date of  continuous\nservice; because, the 'KLM principle' was not applicable  to\nthat appellant.\t According to the principle the seniority of\nthe  Travancore personnel as between themselves, or  of\t the\nCochin personnel as between  themselves could not  disturbed\nwhile' determining the relative seniority of the  Travancore\nand Cochin personnel in any class.  But the officer who\t was\njunior\tto the appellant had arranged for a mutual  transfer\nwith an officer from Madras 'and could not be held to be  in\nservice\t in Kerala for the purpose of the  final  integrated\nlist.  The question of inter se seniority cannot arise\twhen\nthere  is  nothing. to fix such inter se  seniority  of\t the\nappellant vis-a-vis his junior. Therefore the benefit of the\nprinciple cannot, be claimed by the appellant. [877C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2629 &\t2630
\nof 1969.\n<\/p>\n
From  the judgment and order dated the 2nd April,.  1969  of
\nthe Kerala High Court at Ernakulam in Original Petition Nos.
\n2709 and 2708 of 1966, and
\nCivil Appeal Nos. 304 & 305 of 1972.\n<\/p>\n
 Appeals by special leave from the judgment and order  dated
\nthe  2nd  April, 1969 of the Kerala High Court\tin  Original
\nPetition Nos. 2708 of 1966 and
\nSardar\tBahadur,  and  C.  P.  Damodaran  Nayar,   appellant
\nappeared in person( in C.As 2629\/69 & 305\/72)
\n869<\/span>
\nK.   T.\t Harindra Nath and Vishnu Bahadur Saharya,  for\t the
\nappellant (in C.A. 2630\/69).\n<\/p>\n
 V. A. Seiyid Mohmud and K. C. Dua, for respondent Nos.\t 1 &
\n4  (in\tC. A. 2629\/69 and respondent Nos.  1 &\t3  (in\tC.A.
\n2630\/69).\n<\/p>\n
Gobind\tDas and S. P. Nayar, for respondent No. 2 (in  C.As.
\n2629 and 2630).\n<\/p>\n
A.   V.\t Rangam and A. Subhashini, for respondent No. 3\t (in
\nC.A. 2629\/69).\n<\/p>\n
P.   C.\t Chandi, for respondent No. 3 (in C.A.\t304\/72)\t and
\nrespondents Nos.  1 & 4 (in C.A. 305\/72).\n<\/p>\n
K.   M. K. Nair, for respondent No. 5 (in C.A.A. 2629\/69).
\nS.   Gopalakrishnan, for respondent Nos. 6&7 (in C.A. 2629\/\n<\/p>\n
69).\n<\/p>\n
The Judgment of the Court was delivered by
\nGOSWAMI,  J.  These appeals by\tcertificate  are  directed
\nagainst\t the  judgment of the Kerala High Court\t in  several
\nwrit   applications  filed  there  challenging\t the   final
\nintegration  list  of judicial officers allotted  to  Kerala
\nState under the States Reorganisation Act, 1956, briefly the
\nAct.  The appellant in Civil Appeal No. 2629 of 1969,  which
\nwe  will  take\tfirst, was a practicing\t Advocate.   He\t was
\nrecruited along with 82 others by the Madras Public  Service
\nCommission,  briefly  the Commission,  and  was\t temporarily
\nappointed as a District Munsiff by the Madras Government  on
\nNovember  25, 1950.  This appointment was under rule  7A  of
\nthe  Madras  State Judicial Service Rules, ‘then  in  force.
\nThe  Madras  High  Court  posted  him  for  training   which
\ncommenced on January 16, 1951 and while undergoing  training
\nhe  was posted as District Munsiff at Calicut where he\ttook
\ncharge’ of this post on May 26, 1951. Since then he has been
\nin   continuous\t service  as  Munsiff,\tsubordinate   Judge,
\nDistrict   Magistrate  and  as\tDistrict  Judge.    One\t  B.
\nVenkataramans, who had not been selected as District Munsiff
\nalong  with the appellant and ‘others ‘in  1950,  challenged
\nthe  selection\tmade by the Commission in  a  writ  petition
\nbefore this Court.  This Court allowed the petition and\t the
\ndecision  is  reported in V. Venkataramana v. The  State  of
\nMadras & ‘Another’ (1) :This Court held that the Communal G.\n<\/p>\n
0. of the Madras Government which besides making reservation
\nof posts for Harijans and backward Hindus, as sanctioned  by
\ncl. (4) of Art. 16, also made reservation of posts for other
\ncommunities  viz.  Muslims, Christians,\t Non-Brabmin  Hindus
\nand Brahmins was repugnant to the provisions of Art. 16\t and
\nwas  as such void and illegal.\tThe Court, however, did\t not
\ncancel\tall  the  appointments\tmade  during  the  year\t but
\ndirected  the  Government  to consider and  dispose  of\t the
\napplication  of\t Venkataramana\ton its\tmerits\tand  without
\napplying  the,\trule  of  communal  rotation.\tIt  may\t  be
\nmentioned  that\t the appellants .here and  other  successful
\ncandidates were not joined as respondents in ‘the said\twrit
\npetition before this Court.  Venkataramana was
\n(1) A.I.R. 1951
\n870<\/span>
\naccordingly  selected and appointed as District Munsiff\t and
\nhe took charge of his office on October 6, 1951,  Consequent
\nupon  the  decision in that case the Madras  State  Judicial
\nService\t Rules\t(briefly the Madras Rules)  were  framed  on
\nOctober\t 6, 1953 under Article 234 read with Article 309  of
\nthe   Constitution.    These   Rules   came   into    effect
\nretrospectively\t from  March 22, 1951.\tIt is  averred\tthat
\nappointment of the appellant is thus under rule 11(2) of the
\nMadras\tRules.\tOn November 2, 1953, the  Madras  Government
\ndirected that the services of the appellant along with other
\ncandidates be, regularised w.e.f. October 6, 1951, the\tsame
\ndate from which Venkataramana’s appointment has been so done
\n(vide  Ext.  P-7).  It is also mentioned in this order\tthat
\nthe  82\t officers  mentioned in the schedule  to  the  order
\nincluding  Venkataramana (serial No. 27) and  the  appellant
\n(serial No. 72) will commence probation from that date.\t The
\nGovernment, however, sanctioned increment in the time  scale
\nto  the appellant and the other District Munsiffs  appointed
\nin 1950 and 1951 from the date of commencement of continuous
\nservice\t (vide Ext.  P-6).  Consequent upon the\t passing  of
\nthe  States  Reorganisation  Act  on  August  31,  1956,  51
\njudicial  officers  including  the  appellant  belonging  to
\ndifferent  cadres like District Judge, District\t Magistrate,
\nSub-Judge, Munsiff and Sub-Magistrate were transferred\tfrom
\nthe Madras State to the Kerala State on September 11,  1956.
\nThe appellant was finally allotted to Kerala w.e.f.  October
\n24,  1956,  as per order of the Government  of\tIndia  dated
\nAugust\t24,  1960, under the Act.  The State of\t Kerala\t was
\nbrought\t into  being w.e.f. November 1, 1956.  We  may\tnote
\nhere that the new Kerala State was formed under section 8 of
\nthe Act comprising the territories of the existing State  of
\nTravancore-Cochin, excluding the territories transferred  to
\nthe  State  of\tMadras by section  4;  and  the\t territories
\ncomprised  in  Malabar district, excluding  the\t islands  of
\nLaccadive  and Minicoy and Kasaragod taluk of  South  Kanara
\ndistrict.\n<\/p>\n
The  Government\t of  Kerala passed  an\torder  (Ext.   P-16)
\nregarding  reorganisation of judicial services.\t  After\t the
\nreorganisation\tof  States,  principles\t were  evolved\t and
\nformulated  by the Central Government at the  conference  of
\nChief\tSecretaries  of\t the  different\t  States   regarding
\nintegration  of\t services.   The  Kerala  Government  framed
\nprinciples and procedures regarding integration of  services
\nof  Travancore-Cochin personnel with the personnel  allotted
\nfrom  Madras (vide Ext.\t P-13).\t The Madras Government\talso
\nframed\tgeneral\t principles for integration of\tservices  by
\ntheir  order  dated July. 17, 1957 (vide Ext.\tP-14).\t The
\nGovernment  of\tKerala issued orders regarding\tequation  of
\nposts  in  the\tJudicial  Department  for  the\tpurpose\t  of
\nintegration  of services on May 27, 1958 (vide Ext.   P-17).
\nThe equation was as follows
\n“Travancore-Cochin
\n(1)  District Judge-I Grade-\tDistrict Judges-II Grade-Rs.
\nRs. 800-1000.\t\t\t     1000-1800.\n<\/p>\n
District & Sessions Judge,    District Magistrate. (Judl.)
\nII Grade-Rs. 500-800.  Grade-500-700 plus Spl.\n<\/p>\n
\t\t\tpay Rs. 50\/-\n<\/p>\n
 871<\/span><\/p>\n
(iii) District Magistrate     Sub Judges on-Rs.\t 550- 700.
\nGrade- Rs. 500-800.\n<\/p>\n
Addl.  District and Sessions
\nJudges and Sub-judges
\nGrade-Rs. 450-600,\n<\/p>\n
(iv) Sub  Divisional  Magistrates District Munsiff  and\t Sub
\nDivisional Magistrate Rs. 300-700.\n<\/p>\n
I    Grade-Rs. 450-600.\n<\/p>\n
Munsiffs and Sub-Divisional Magistrate
\n Grade II on-Rs. 250-500.\n<\/p>\n
(v)  Sub Magistrate
\n Rs. 200- 300.”\n<\/p>\n
Sub Magistrates Rs. 200-300.\n<\/p>\n
The appellant preferred an appeal against this order through
\nthe  Kerala High Court and the Government of Kerala  to\t the
\nAdvisory  Committee  constituted by the\t Central  Government
\nunder  section,\t 115(5) of the Act challenging\tamong  other
\nthings\tthat  the principles evolved for  the  equation,  of
\nposts were illegal and unjust.\tMeanwhile the Government  of
\nKerala\ton September 24, 1959, ordered that it would not  be
\nproper\tto  equate  the District Magistrates  and  the\tSub-
\nDivisional  Magistrates\t of Grades I and  II  of  ‘executive
\norigin’\t belonging to the erstwhile Travancore-Cochin  State
\nwith the Civil Judicial Officers and that the same should be
\nkept  separate until the Magisterial Officers  were  induced
\ninto  the  Civil Judiciary in the  manner  prescribed  under
\nArticle\t 234 of the Constitution.  By the same order it\t was
\nprovided  that the three posts of the  District\t Magistrates
\n(actually  four since one was omitted through  mistake)\t and
\neight posts of Sub-Divisional Magistrates of the Travancore-
\nCochin\tarea  would  be constituted as\ta  separate  service
\noutside\t the Civil Judiciary so as to enable the  incumbents
\nto  continue in their posts (vide Ext.\tP-21).\tOn the\tsame
\ndate, the Government of Kerala passed an order under Article
\n234  of the Constitution by which the  salaried\t Magisterial
\nOfficers  of  the  former  Travancore-Cochin  State  in\t the
\ncategories   of\t  District   Munsiffs\tand   Sub-Divisional
\nMagistrates  were  made\t eligible  for\tappointment  to\t the
\ncategories  of Subordinate Judges and Munsiffs\trespectively
\n(vide  Ext.   P-27).   The  appellant  preferred  an  appeal
\nagainst\t the  order (Ext.  P-21) on October, 20\t 1959  (vide
\nExt.   P-22).\tHe pointed out that if the  aforesaid  order
\n(Ext.\tP-21)  was implemented there was likelihood  of\t the
\nSub-Divisional Magistrates who had got far less service than
\nthat of the Munsiffs securing promotion over such  Munsiffs.
\nThe  Kerala  Government passed a final order  regarding\t the
\nequation  of posts in the judiciary on July 24, 1961  (vide,
\nExt.  P-23) and informed the appellant that the. appeals had
\nbeen rejected by the Government of India.  The Government of
\nKerala published the preliminary integrated list of Judicial
\nOfficers  on April 24, 1962 (vide Ext.P-24).  The  appellant
\npreferred  an  appeal against this list (vide  Ext.   P-25).
\nOther  officers\t also  filed  representations  and   appeals
\nagainst the same.  In the, preliminary integrated  gradation
\nlist  of the Travancore-Cochin and Madras personnel  as\t Ion
\nNovember 1, 1956, the appellant was
\n872<\/span>
\nshown against serial No. 44 and his date of commencement  of
\ncontinuous service as well as the date of appointment to the
\npost  of  equated  category  was  shown\t as  May  26,  1951.
\nRespondents 6 and 7 were shown below him against serial Nos.
\n46  and\t 47  respectively  in  the  list.   Their  dates  of
\ncommencement  of  continuous service are July 20,  1951\t and
\nOctober\t 1, 1951 respectively and the same are the dates  of
\nappointment  to\t the post of equated category in  the  list.
\nAfter  publication of the preliminary integrated  list,\t the
\nGovernment  of Kerala issued two orders on May 16, 1962\t and
\nMay  10, 1963 (vide Exts.  R-1 and R.2)\t respectively.\t R-2
\nhas superseded the earlier order R-1 and some other  orders.
\nWe may quote the relevant portion of the order in Ext.\t R-2
\nwhich rans as follows
\n\t      “The  Government of India have considered\t the
\n\t      representations  of  the\tofficers  and\thave
\n\t      decided as follows :-\n<\/p>\n
\t      (i)   The\t officers  allotted to\tKerala\tfrom
\n\t      Madras may be allowed the benefit of emergency
\n\t      service  towards\tseniority  in  the   equated
\n\t      category\tif  such  service  would  have\tbeen
\n\t      regularised from the- date of their  emergency
\n\t      appointment   and\t counted   for\t inter-state
\n\t      seniority\t in integration in Madras  on  1-11-
\n\t      1956 had they remained in Madras.\n<\/p>\n
\t      X.\t\tx\t\t    x\n\t      x\n<\/pre>\n
This decision of the Government of India was accepted by the
\nKerala\tGovernment.  On the subject of taking  into  account
\nthe  emergency service there was correspondence between\t the
\nCentral\t Government and the Government of Kerala (vide\tExt.
\nP-32  dated March 1, 1962) On the same subject matter  there
\nwere two letters from the government of Madras addressed  to
\nthe  Kerala Government (vide Exts. p-34 dated July 20,\t1963
\nand  P-35 dated November 7, 1963) to the Secretary  allotted
\nAgricultural  Officers’\t Association, certain  ad-hoc  rules
\n(vide  Ext.P-28)  for absorption of Criminal  side  Judicial
\nOfficers of the Travancore-Cochin Branch who’ were kept in a
\nseparate  cadre.  These rules inter alia provided  that\t for
\nthe   purpose\tof  determining\t seniority   the   date\t  of
\ncommencement of continuous  service in the post of  District
\nMagistrate  shall  be  deemed  to  be,\tthe  date  of  first
\nappointment to, the category of Sub-Judge.  The\t appellants’
\nappeals\t were  ultimately  rejected-by\tthe  Government-  of
\nIndia.\t  On-March  26,\t 1966,\tthe   Government-of   Kerala
\npublished the final integrated list of the Travancore-Cochin
\nand Madras personnel of the Judicial Officers as on November
\n1,  1956 (vide Ext.  P-31) showing respondents 6 and 7,\t who
\nwere junior to him as per the, preliminary integrated  list,
\nnow  placed above him in, the final list In the\t preliminary
\nlist although his date of commencement of continuous service
\nwas  shown  as May 26, 1951, he was assigned in\t final\tlist
\nOctober\t 6, 1951 being the date of his appointment-  to\t the
\npost in the equated category as on November 1, 1956.  In the
\nabove
\n873<\/span>
\nbackground,  the appellant filed a writ application  in\t the
\nHigh,  Court  of Kerala praying for  restraining  the  State
\nGovernment  and\t the  Registrar\t of  the  High\tCourt\tfrom
\nimplementing  Ext.  P-31, the final. list, and to  award  to
\nthe   appellant\t  appropriate  rank  and   seniority   above
\nrespondents 6 and 7, amongst other prayers.  His application
\ncame  up before a Full Bench of the High court and the\tsame
\nwas  rejected.\tThe respondents were impleaded in  the\tHigh
\nCourt  in  a representative capacity and  the  High  Court’s
\norder  under or.1 r.8, Civil Procedure Code,  were  obtained
\nand the notice was published in the newspaper.
\nSeveral questions were raised before the High Court, but the
\nappellant here has made two main submissions :\n<\/p>\n
\t      (1)   His\t  seniority   in  service   in\t the
\n\t      integrated  judicial service in Kerala  should
\n\t      be  counted  from May, 26, 1951, the  date  on
\n\t      which he joined service and from which he\t has
\n\t      continuously been working.\n<\/p><\/blockquote>\n
\t      (2)   There  is  no justification in  law\t for
\n\t      creation\tof a separate cadre for\t Magistrates
\n\t      of the executive origin and for reserving four
\n\t      posts of District Magistrates, exclusively  in
\n\t      favour   of  Sub-Divisional   Magistrates\t  of
\n\t      executive origin.\n<\/p><\/blockquote>\n
The  appellant’s  grievance  is that  he  should  have\tbeen
\nassigned  May  26, 1951 instead of October 6, 1951.   It  is
\nclear  that  under section 115(5) of the  Act  “the  Central
\nGovernment  may\t by  order establish one  or  more  Advisory
\nCommittees for the purpose of assisting it in regard to-\n<\/p>\n
\t      (a)   the\t division  and\tintegration  of\t the
\n\t      services\tamong the new States and the  States
\n\t      of Andhra Pradesh and Madras; and\n<\/p><\/blockquote>\n
\t      (b)   the\t ensuring  of  fair  and   equitable
\n\t      treatment\t to  all’ persons  affected  by\t the
\n\t      provisions  of  this section  and\t the  proper
\n\t      consideration ‘of any representation made’  by
\n\t      such persons”.\n<\/p><\/blockquote>\n
Under  section 1 17 of the Act, “the Central Government\t may
\nat  any\t time before or after the appointed  day  give\tsuch
\ndirections  to any .State Government as may appear to it  to
\nbe  necessary  for  the\t purpose of  giving  effect  to\t the
\nforegoing provisions of this Part and the, State  Government
\nshall comply with such directions”.  In accordance with ‘lie
\nprovisions  of this Act, a meeting of the Chief\t Secretaries
\nof  the,  various  States that were to be  affected  by\t the
\nreorganisation,\t was  held  on\tMay  18-19,  1956,  at\t the
\ninvitation of the Central Government In this meeting certain
\ndecisions  were\t taken\tas to the  general  principles\tthat
\nshould be observed with regard to the integration work.\t The
\ngovernment-of India thereafter informed the State Government
\nthat  they  had\t decided that the  work\t of  integration  of
\nservices  should be dealt with by the State  Governments  in
\nthe  light  of\tgeneral principles already  decided  in\t the
\nmeaning of the Chief Secretaries.  With regard
\n874<\/span>
\nto  the\t principle  for,determining equation  of  posts\t and
\nrelative  seniority, the following conclusions were  reached
\nat the conference of the Chief Secretaries :\n<\/p>\n
\t      “It   was\t agreed\t that  in  determining\t the
\n\t      equation\tof  posts,  ,the  following  factors
\n\t      should be borne in mind\n<\/p><\/blockquote>\n
\t      (i)   the nature and duties of a post;\n<\/p><\/blockquote>\n
\t      (ii)  the\t   responsibilities    and    powers
\n\t      exercised\t by the officer holding a post;\t the
\n\t      extent of territorial or other charge held  or
\n\t      responsibilities discharged;\n<\/p><\/blockquote>\n
\t      (iii) the\t minimum.  qualifications,  if\tany,
\n\t      prescribed for recruitment to the post;\n<\/p><\/blockquote>\n
\t      (iv)  the salary of the post;\n<\/p><\/blockquote>\n
It  was\t agreed that in determining  relative  seniority  is
\nbetween\t two  persons holding posts declared  equivalent  to
\neach  other, and drawn from different States, the  following
\npoints should be taken, into account\n<\/p>\n
\t      (i)   Length  of Continuous  service,  whether
\n\t      temporary or permanent, in a particular grade;
\n\t      this  should  exclude  periods  for  which  an
\n\t      appointment  is held in, a purely stop-gap  or
\n\t      fortuitous arrangement;\n<\/p>\n
\t       (ii) age\t of the person; other factors  being
\n\t      equal,   for   instance,\tseniority   may\t  be
\n\t      determined on the basis of age.\n<\/p>\n
\t       Note  :\tIt was also. agreed that as  far  as
\n\t      possible,\t the  inter se senority\t of  officer
\n\t      drawn  from  the\tsame  State  should  not  be
\n\t      disturbed”.\n<\/p>\n
This position was altered as already noted earlier when\t the
\nCentral Government, after considering the representations of
\nthe officers made under section 115(5) of: the- Act  decided
\nthat  “the  officers allocated to Kerala State\tfrom  former
\nMadras,\t may  be allowed the benefit  of  emergency  service
\ntowards\t seniority in the equated category if such  services
\ntowards service(sic) would have been registered from  the
\ndate of\t their\temergency- appointment\tand counted for
\ninter-state  seniority\t in, integration  on   1st  November
\n1956, hadthese officers remained in Madras ” (vide Ext.\t P-
\n33 dated 16-2-1963 which modified Ext. P-32 dated  1-3-1962)
\nWe  have also referred to a  letter  from the Government  of
\nMadras to the Kerala Government dated to a letter from 1963 (Ext.
\nP34) wherefrom the following extract is relevant:-\n<\/p>\n
\t       ”   According   to  sub-paragraph   (2)\t  of
\n\t      paragraph\t 1 of the  said G.O. the  date\tfrom
\n\t      which  an\t allottee to this  State   from\t the
\n\t      former\t Travancore-Cochin     State\t was
\n\t      continuously  holding the\t corresponding\tpost
\n\t      in the former Travancore-Cochin State is taken
\n\t      into  account  for the purpose  of fixing\t his
\n\t      seniority in the equated\tcadre in this state.
\n\t      Therefore\t for (3)of  paragraph 1\t of  said
\n\t      G.O. only continuous service
\n875<\/span>
\n\t      whether regular, temporary or emergency of the
\n\t      allottees is taken into account”.
\n\t      Hence   the   position  in  Madras   is\tthat
\n\t      continuous  service of the appellant  “whether
\n\t      regular,\ttemporary or emergency”\t would\thave
\n\t      been  taken  into account for the\t purpose  of
\n\t      seniority.   It  is also clear  and  not\teven
\n\t      disputed\tthat  the  appellant  has  been\t  in
\n\t      continuous  service from May 26,\t1951.\tThat
\n\t      being   the   position,  the   conclusion\t  is
\n\t      irresistible  in\tview  of  the\tGovernment’s
\n\t      decision (vide Ext.  P-33) that the  appellant
\n\t      was entitled to the assignment of May 26, 1951
\n\t      for the purpose of his seniority..
\n\t      Dr.  Syed\t Mohamad,  on  behalf  of  the\t 1st
\n\t      respondent,  submits that the question has  to
\n\t      be decided with reference to rule 11(2) of the
\n\t      Madras Rules.  The same may be set out :
\n\t      11(2) : “Where the appointment of a person  as
\n\t      District\tMunsiff\t in  accordance\t with  these
\n\t      rules would involve, excessive expenditure  on
\n\t      travelling  allowance  or\t exceptional   admi-
\n\t      nistrative  inconvenience,  the  Governor\t may
\n\t      appoint  any  other  person  in  the  list  of
\n\t      approved candidates.  A person appointed under
\n\t      this  rule shall not be regarded as  a  proba-
\n\t      tioner in the service or be entitled by reason
\n\t      only  of such appointment to any\tpreferential
\n\t      claim to future appointment to the service”.
\n\t      “The High Court accepted this submission\twhen
\n\t      it observed as follows:–\n<\/p><\/blockquote>\n
\t       “The  appointment  under\t rule  11(2)  is   a
\n\t      temporary\t appointment and it is so stated  in
\n\t      the rule itself.\tAppointment under rule 11(3)
\n\t      also  is a temporary appointment\tthough\tthis
\n\t      can  be even of persons who do not  figure  at
\n\t      all  in  any select list\tprepared  after\t the
\n\t      selection by die Public Service Commission.  A
\n\t      reading of the rule–rule 11(3) of the  Madras
\n\t      State Judicial Service Rules–shows that\tthis
\n\t      rule   will  be  resorted\t to  in\t  cases\t  of
\n\t      emergency.  Suffice to say at this stage\tthat
\n\t      service  rendered in a temporary\tcapacity  by
\n\t      virtue  of appointments under rules  11(2)  or
\n\t      11(3),  at any rate the whole of it,  did\t not
\n\t      necessarily count for the purpose of inter  se
\n\t      seniority\t among the persons who\tbelonged  to
\n\t      the particular service in the State or Madras.
\n\t      The  Government  of India\t decided  that\tthis
\n\t      service  which  did  not count  for  inter  se
\n\t      seniority\t among the Madras personnel  in\t the
\n\t      State  of Madras and did not count for  inter-
\n\t      State  seniority in the matter of\t integration
\n\t      of the personnel that remained in the State of
\n\t      Madras  with those that have been allotted  to
\n\t      the State of Madras, will not count for inter-
\n\t      State seniority of personnel allotted from the
\n\t      State  of Madras to the State of Kerala,\tfor,
\n\t      the   purpose   of   integration\t with\t the
\n\t      Travancore-Cochin personnel-“.\n<\/p><\/blockquote>\n
It is true that\t rule in deals with temporary appointments.:
\nRule 11(3), however, is not at- all relevant for the purpose
\nof the present case
\n876<\/span>
\nThe  question that arises for consideration is that  whether
\nafter final allotment of the appellant under the Act to\t the
\nState  of Kerala, the application of the Madras Rules  would
\nbe  at\tall  relevant in face of a  clear  decision  of\t the
\nGovernment of India made under the Act.\t We have to hold  in
\nthe negative.  Apart from that, the Government of India took
\na  decision  which also the Kerala Government  had  accepted
\n(vide  Ext.  R-2) as already set out.  In this view  of\t the
\nmatter\twe are Unable to agree with the High Court that\t the
\nappellant  had been correctly assigned his date\t October  6,
\n1951 instead of May 26, 1951.\n<\/p>\n
It  is\tnext submitted by the learned counsel  for  the\t 1st
\nrespondent that the appointment of the appellant was “purely
\nstop-gap  or  fortuitous arrangement” as  mentioned  in\t the
\nprinciples agreed at the meeting of ,the Chief\tSecretaries.
\nHe also tries to reinforce his argument by referring to rule
\n11(3)\t  which provides that “where it is necessary in\t the
\npublic\tinterest owing to an emergency which has  arisen  to
\nfill  immediately  a vacancy in, the  category\tof  District
\nMunsifs…….. Assuming that rule 11(3) may be invoked\t and
\nthe   earlier  decision\t of  the  Government  of  India\t  in
\nconformity  with  the agreement of  the\t Chief\t‘Secretaries
\nreferring to “purely stop-gap or fortuitous arrangement” are
\napplicable,  we\t are unable to agree  that  the\t appellant’s
\nservice\t is, either filled “owing to an: emergency” or\tthat
\nthe  same  is  held in a  “purely  stop-gap.  or  fortuitous
\narrangement”.\tThe learned counsel for the  1st  respondent
\nfollowed by the counsel for the Union of India has submitted
\nthat on account of the writ application by Venkataramana  in
\nthe  High Court the appointment of the appellant had  to  be
\nmade  as  a temporary measure as has been mentioned  in\t the
\nletter\tof appointment itself.\tWe are, however,  unable  to
\naccept\tthis been appointed in a regular manner through\t the
\nPublic Service Commission and his-appointment cannot by\t any
\nstretch\t of imagination be made to fill a “‘purely  stop-gap
\nor  fortuitous” vacuum.\t As noticed earlier, the  Government
\nof India has accepted the position that an allotted employee
\nshould not suffer any disadvantage if he Would not have been
\nsubjected  to  a like handicap in his parent State.   It  is
\nclear  from  the position taken by the Madras  ‘  Government
\nthat  the  appellant  would  have got  the  benefit  of\t his
\ncontinuous appointment’ in Madras w.e.f. May 26, 1951  (Vide
\nExt.  P-34).  That being the position the submissions of the
\nlearned counsel for the respondents are of no avail. we hold
\nthat  he  appellant  should  be given  the  benefit  of\t his
\nseniority reckoning his continuous appointment and assigning
\nthe  date.  26th May 1951 and substituting the same  in\t the
\nfinal list for 6th October, 1951.\n<\/p>\n
With  regard  to  the. second submission  of  the  appellant
\nregarding  the\treservation of a separate cadre\t e  for\t the
\nDistrict   Magistrate  And  Sub-Divisional  Magistrates\t  of
\nexecutive origin, we do not see any force in his contention.
\nIt  is open, to the, State Government to constitute as\tmany
\ncadres\t as   they  choose   according\t to   administrative
\nconvenience  and expediency .There is,\ttherefore, no  merit
\nin  the\t objection to the creation of a separate   cadre  of
\nDistrict  Magistrates  and  sub-Divisional   Magistrates  of
\nexecutive  origin.   The  submission  of  the  appellant  is
\nwithout any force.\n<\/p>\n
purchases and there would be no disincentive to the- dealers
\nto  desist from selling goods to unregistered purchasers  in
\ncourse\tof  inter-State\t trade.\t  The  object  of’  the\t law
\napparently  is\tto deter inter-State sales  to\tunregistered
\ndealers as such inter–State Sales would facilitate  evasion
\nof tax. [984 C]
\n877<\/span>
\nWith regard to Civil Appeal No. 2630 of 1969 of P. S. Menon,
\nSub-Judge,   Quilon,   the  above  submissions,\t  which\t  we
\nhave  dealt With, were also advanced in his case.   For\t the
\nsame reasons, the appellant in this appeal will be  entitled
\nto  assignment\tof  12th  February, 1955,  as  the  date  of
\ncontinuous employment of his service after allotment to\t the
\nKerala State for the purpose of his seniority.\tThe  learned
\ncounsel, however, additionally contends that he should\thave
\nthe benefit of what is described as the K.L.M. Principle  in
\nthe following circumstances :\n<\/p>\n
One  Sethu  Madhavan,  who  is\tadmittedly  junior  to\t the
\nappellant, was provisionally allotted to the State of Kerala
\nalong  with the appellant at the initial stage when the\t new
\nState  was  constituted. Later on  however,  Sethu  Madhavan
\narranged  a  mutual transfer with a  Judicial  Officer\tfrom
\nMadras\twho desired to take transfer to Kerala and for\tthat
\n;,reason his provisional allotment was cancelled and he\t was
\nnot  finally allotted to Kerala.  In the  final\t integration
\nlist Sethu Madhavan’s name therefore, does not appear.
\nIf  Sethu Madhavan had remained in Kerala, the\tposition  of
\nthe appellant in the list sight have been different,  since.
\nSethu  Madhavan’s  date of continuous service  is  1-7-1954.
\nBut the final list will now have to be judged without taking
\nnote  of Sethu Madhavan who had already left the State.\t  It
\nis submitted that since the final list has been prepared  as
\non  1-11-1956, the appellant should get the benefit  of\t his
\ndate.\tSince, however, Sethu Madhavan cannot be held be  in
\nservice\t in Kerala for the purpose of the  final  integrated
\nlist  the  appellant is not entitled to\t assignment  of\t his
\ndate.\n<\/p>\n
We  may\t now  describe what the K.L.M.\tPrinciple  is.\t The
\nexpression  ‘K.L.M. Principle’ which came into existence  in
\nthe   Travancore-Cochin\t State\tby  an\torder\tdated\t27th
\nSeptember,  1950, has been described in the following  words
\nby the High Court in the judgment
\n\t      “The relative seniority of the Travancore\t and
\n\t      Cochin personnel in any class or grade in\t the
\n\t      common seniority list will be determined\twith
\n\t      reference\t to  the  date\tof  commencement  of
\n\t      continuous  service  in the  same\t or  similar
\n\t      class  or grade of posts subject, however,  to
\n\t      the  condition  that  the\t Seniority  of\t the
\n\t      Travancore personnel as between themselves  or
\n\t      of the Cochin personnel as between  themselves
\n\t      should not thereby be disturbed”.\n<\/p>\n
\t      Dealing with the point the High Court observed
\n\t      as follows
\n\t      “Though  the  said  Sethu\t Madhavan  commenced
\n\t      service earlier in the State of Madras he\t was
\n\t      admittedly   junior  to  the  petitioner\t and
\n\t      therefore\t  it  will  become   necessary\t for
\n\t      settling\t the  inter  se\t seniority  of\t the
\n\t      petitioner vis-a-vis Sethu Madhavan to  assign
\n\t      to the petitioner in integrated gradation list
\n\t      a\t place above the said Sethu Madhavan.\tThis
\n\t      is  so because the principle settled as  early
\n\t      as  29th\tDecember 1956 by G.O. of  that\tdate
\n\t      clearly  provided\t that  in  effecting,  inte-
\n\t      gration  the inter se seniority of persons  in
\n\t      either branch that
\n\t      878<\/span>
\n\t      are  integrated should not be  affected.\t The
\n\t      question however cannot arise when there is no
\n\t      need  to\tfix the inter se  seniority  of\t the
\n\t      petitioner vis-a-vis the said Sethu Madhavan”.
\nWe  agree with the above observations of the High Court\t and
\nreject\tthe submission of the appellant that he is  entitled
\nto  the benefit of the K.L.M. Principle on the basis of\t the
\nprovisional allotment of Sethu Madhavan.
\nIt  may be mentioned that we had allowed  without  objection
\nfrom  the respondent CMP No. 9761 of 1973 and  admitted\t the
\ndocuments mentioned therein.\n<\/p>\n
In  the result the appeals are partly allowed.\tThe 1st\t and
\n2nd respondents are directed to assign to the appellant, C.P
\nDamodaran Nayar, the date May 26, 1951, by substituting\t the
\nsame for October 6, 1951, in the final integration list\t and
\nto  give him the consequential benefits to which he  may  be
\nentitled  by  virtue  of this  assignment’..  The  aforesaid
\nrespondents  are also directed to assign to ;the  appellant,
\nP.  S.\tMenon,\tthe date February 12,  1956,  in  the  final
\nintegration  list and to give him such consequential  relief
\nas-he  may be entitled to in pursudance of the new  assigned
\ndate.\tThe judgment of the High Court is set aside only  to
\nthe extent indicated above.  The appellants are entitled  to
\ncosts in this Court.  Two sets only.\n<\/p>\n
Civil Appeals Nos. 304 and 305 of 1972 are identical by\t the
\nsame  two appellants and they’stand disposed of\t accordingly
\nby this
\nV.P.S.\t\t   Appeals partly allowed.\n<\/p>\n
879<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C. P. Damodaran Nayar And P. S. … vs State Of Kerala And Others on 20 December, 1973 Equivalent citations: 1974 AIR 1343, 1974 SCR (2) 867 Author: P Goswami Bench: Goswami, P.K. PETITIONER: C. P. DAMODARAN NAYAR AND P. S. MENON Vs. RESPONDENT: STATE OF KERALA AND OTHERS DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-114567","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC. P. Damodaran Nayar And P. S. ... vs State Of Kerala And Others on 20 December, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-p-damodaran-nayar-and-p-s-vs-state-of-kerala-and-others-on-20-december-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C. P. Damodaran Nayar And P. 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