{"id":245741,"date":"1970-02-06T00:00:00","date_gmt":"1970-02-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-d-shukla-ors-vs-state-of-gujarat-ors-on-6-february-1970"},"modified":"2017-01-12T09:37:11","modified_gmt":"2017-01-12T04:07:11","slug":"m-d-shukla-ors-vs-state-of-gujarat-ors-on-6-february-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-d-shukla-ors-vs-state-of-gujarat-ors-on-6-february-1970","title":{"rendered":"M. D. Shukla & Ors vs State Of Gujarat & Ors on 6 February, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. D. Shukla & Ors vs State Of Gujarat & Ors on 6 February, 1970<\/div>\n
Equivalent citations: 1971 AIR 117, \t\t 1970 SCR (3) 515<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nM.   D. SHUKLA & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT & ORS.\n\nDATE OF JUDGMENT:\n06\/02\/1970\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nHEGDE, K.S.\n\nCITATION:\n 1971 AIR  117\t\t  1970 SCR  (3) 515\n 1970 SCC  (1) 419\n CITATOR INFO :\n R\t    1977 SC 747\t (6)\n\n\nACT:\nStates\tReorganisation\tAct 37 of 1956 ss.  115,  116,\t117-\nBombay\tRe-organisation\t Act 11 of 1960, ss. 81,  82  &\t 83-\nPermanent employees of Saurashtra and Kutch States  allotted\nto  Bombay State after passing of Act 37 of 1956 but  posted\nin  districts  of Saurashtra and Kutch-Allotted\t to  Gujarat\nState  after  passing  of  Act\t11  of\t1960-Transferred  to\nSecretariat--Government order regularising their services in\nSecretariat\t and\t  fixing     their\tpay\t and\nseniority--Regularisation  whether amounted to\t'absorption'\nwithin meaning of Bombay Allocated Government Servants' (Ab-\nsorption.   Seniority, Pay and Allowances) Rules,,  1957,-R.\n138 of Bombay Civil Services Classification and\t Recruitment\nRules,\t1939  as amended' in 1957 whether violated  by\tsuch\nregularisation.\n\n\n\nHEADNOTE:\nPrior  to  November  1, 1956  the  appellants  were  holding\npermanent   posts   in\tthe  ministerial  service   of\t the\nSecretariats of the Part B State of Saurashtra and the\tPart\nC  State  of  Kutch.   By  virtue of  s.  8  of\t the  States\nReorganisation Act 37 of 1956 the new State of Bombay  which\nincluded  the  territories of the States of  Saurashtra\t and\nKutch was formed.  Under s. 115(1) of the Act the appellants\nwere allotted to serve in connection with the affairs of the\nnew  State of Bombay.  BY the proviso to, s. 115(7)  it\t was\nprovided that 'conditions of service applicable\t immediately\nbefore the appointed day to the case of any person  allotted\nto  another  State shall not be varied to  his\tdisadvantage\nexcept\t with\tthe  previous  approval\t  of   the   Central\nGovernment'.   Section 116 provided for the  continuance  of\nofficers in equivalent posts.  By s. 117 power was conferred\nupon  the  Central Government to give  directions  to  State\nGovernments  for the purposes of ss. 114, 115 and 116.\t The\nAct  authorised the Central Government to establish  one  or\nmore  Advisory\tCommittees to advise the Government  on\t the\ndivision  and integration of the services in the new  States\nand for ensuring fair and equitable treatment to all persons\naffected  by  the  provisions  of  s.  115  and\t for  proper\nconsideration  of any representation made by those  persons.\nA large majority of the members of the ministerial branch of\nthe  Secretariats of the State of Saurashtra and Kutch\twere\nunwilling  to be posted in the Secretariat of the new  State\nof  Bombay.   A\t large majority out of\tthem  including\t the\nappellants were accordingly posted in the districts of\tthe-\nformer\tStates\tof Saurashtra and Kutch.  Under\t the  Bombay\nReorganisation\tAct  11 of 1960 the States  of\tGujarat\t and\nMaharashtra  were  carved out of the territory\tof  the\t new\nState  of  Bombay.  Sections 81, 82 and 83 of the  1960\t Act\nwere  substantially the same as Ss. 115, 116 and 117 of\t the\n1956  Act.  The services of the appellants were under s.  81\nof  the\t Act  allotted to the  newly  constituted  State  of\nGujarat.   The State of Gujarat transferred  the  appellants\nfrom the districts to the Secretariat.\tAfter consulting the\nPublic\tService Commission it issued on August 19,  1966  an\norder  \"regularising\"  the services of\tthe  appellants\t and\nfixing\ttheir  pay  and\t seniority.   The  officers  of\t the\nSecretariat  who  before  the, passing\tof  the\t said  order\nconstituted the ministerial service filed a petition in\t the\nHigh Court challenging its validity.  The High Court allowed\nthe  petition mainly on two grounds, namely : (i)  that\t the\nappellants were not absorbed-in the ministerial services  of\nthe Secretariat within the meaning\n516\nof  the Bombay Allocated Servants'  (Absorption,  Seniority,\nPay  and  Allowances) Rules, 1957; (ii) that r. 138  of\t the\nBombay Civil Services Classification and Recruitment  Rules,\n1939   as  amended  in\t1957  allowed  recruitment  to\t the\nMinisterial Staff of the Secretariat by nomination after  an\nexamination  or by promotion from the Lower Division and  it\nwas  not open to the Government to adopt any  other  method.\nThe High Court's ,,decision was challenged in appeal  before\nthis  Court.  The Court noted that no equivalence  had\tbeen\nestablished  between the ,posts in the Secretariats  of\t the\nStates\tof  Saurashtra and Kutch and the posts\tin  the\t new\nState of Bombay or later in Gujarat and that there had\tbeen\nno  integration of the services by the\tCentral\t Government.\nIt  was\t conceded before the Court that the  State  had\t the\nauthority to -transfer, subject to the Constitution and\t the\nrules  made  under Art. 309, -any public servant  to  render\nservice which by his training and aptitude he was  competent\nto do.\nHELD : (i) The fact that the expression 'absorption' had not\nbeen  used  in\tthe impugned order  would  not\tjustify\t the\ninference  that there was no intention to absorb the  former\nSaurashtra  and\t Kutch State personnel in  the\tSecretariat.\n[521 F]\nIn  the absence of determination of equivalent\tposts  under\nthe  orders of the Central Government, the State of  Gujarat\nwas  competent,\t as a matter of provisional  arrangement  to\nabsorb\tthe former Saurashtra and Kutch States personnel  in\nthe  ministerial establishment of the Gujarat  State  Secre-\ntariat.\t  In  terms the order said that\t the  persons  named\ntherein \"should be treated to have been regularly  appointed\nin  the posts shown against their names in column 4  of\t the\nstatement\" appended to the order.  That clearly amounted  to\nabsorption. [521 G-H]\n(ii) The  High Court was wrong in holding that the  impugned\norder  was  bad\t because  it  contravened  r.  138  of\t the\nRecruitment Rules.\nAssuming that r. 138 requires the State to follow a  certain\nmethod for recruitment to the ministerial service, that rule\nmade under Art. 309 of the Constitution cannot take away the\nstatutory  right  vested  in the  personnel  of\t the  former\nSaurashtra  and\t Kutch States which they acquired  under  s.\n115(7) of the States Reorganisation Act, 1956 to hold  posts\nin  the new State which we-re equivalent and on terms  which\nwere not, unless previous approval of the Central Government\nwas obtained, disadvantageous.\tSince the arrangement  which\nwas  made  by  the Gujarat Government must  be\tregarded  as\nprovisional and to ensure so long as the Central  Government\ndid  not  make\ta final decision, it was  not  open  to\t the\nofficers  of \"the Secretariat to challenge the authority  of\nthe  Government of Gujarat either to transfer officers\tfrom\nthe  Districts\tand to post and assign them  duties  in\t the\nSecretariat  or\t to fix their pay and  seniority  among\t the\nofficer\t of the Secretariat performing ministerial  duties.'\n[523 G-524 B]\nN.   Raghavendra  Rao v. Deputy Commissioner, South  Kanara,\nMangalore,<\/a>     [1964] 7 S.C.R. 549 and Union of India & Anr.\nv. P. K. Roy & Ors.<\/a> [1968]    2 S.C.R. 186, applied.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 458 of 1969.
\nAppeal from the judgment and order dated July 1, 1968 of the
\nGujarat, High Court in Special Civil Application No. 1499 of
\n1966.\n<\/p>\n
517<\/span><\/p>\n
M.   C. Chagla, S. K. Dholakia, Vineet Kumar and J. R. Nana-
\nvati, for the appellants.\n<\/p>\n
S.   T. Desai, B. D. Sharma and S. P. Nayar, foe  respondent
\nNo. 1.\n<\/p>\n
S. S. Shukla, for respondents Nos. 2 to 148.
\nThe Judgment of the Court was delivered by
\nShah,  J. Certain officers in the ministerial branch of\t the
\nSecretariat Service of the State of Gujarat moved a petition
\nin  the\t High Court of Gujarat for an  order  directing\t the
\nState Government to treat its order dated August 19, 1966 as
\n“illegal,  void\t and  of  no effect”  and  to  forbear\tfrom
\nenforcing  its order treating the persons whose\t names\twere
\nspecified  in the annexure to the order as servants  of\t the
\n“Secretariat cadre”.  The High Court of Gujarat granted\t the
\npetition  and  declared\t the order dated  August  19,  1966,
\ninvalid.   With certificate granted by the High\t Court\tthis
\nappeal has been filed.\n<\/p>\n
Prior  to  November  1, 1956, the  appellants  were  holding
\npermanent   posts   in\tthe  ministerial  service   of\t the
\nSecretariats of the Part B State of Saurashtra and the\tPart
\nC  State  of  Kutch.   By  virtue of  s.  8  of\t the  States
\nReorganization Act 37 of 1956 the new State of Bombay, which
\nincluded  the  territories of the States of  Saurashtra\t and
\nKutch, was formed.  Section 115 of the States Reorganisation
\nAct  made  provisions relating to services other  than\tAll-
\nIndia  Services.   By sub-s. (1) of s. 115 it  was  enacted,
\ninter  alia,  that every person who immediately\t before\t the
\nappointed day was serving in connection, with the affairs of
\nany of the existing States specified therein shall, as\tfrom
\nthat  day,  be\tdeemed to have been  allotted  to  serve  in
\nconnection  with the affairs of the successor State to\tthat
\nexisting  State.   By  the  proviso to\tsub-s.\t(7)  it\t was
\nprovided  that conditions of service applicable\t immediately
\nbefore the appointed day to the case of any person  allotted
\nto  another  State shall not be varied to  his\tdisadvantage
\nexcept with the previous approval of the Central Government.
\nSection 116 provided for the continuance of officers in\t the
\nsame posts.  By s. 117 power was conferred upon the  Central
\nGovernment  to give directions to Any State Government\tthat
\nmay appear to be necessary for the purpose of giving  effect
\nto -the provisions of ss.  114,115 and 116 of the Act.
\nUnder  the States Reorganisation Act, 1956,  the  appellants
\nwere allotted to serve in connection with the affairs of the
\nnew  State of Bombay.  In exercise of the powers under\tArt.
\n309 of the Constitution, the Government of Bombay sanctioned
\ncertain\t rules\tcalled “The Allocated  Government  Servants’
\n(Absorption,  Seniority,  Pay &\t Allowances)  Rules,  1957”.
\nThose  rules governed the servants who were allotted to\t the
\nState of Bombay on reorganisa-\n<\/p>\n
518<\/span><\/p>\n
tion.\tA large majority of the members of  the\t ministerial
\nbranch\tof the Secretariat of the States of  Saurashtra\t and
\nKutch  were,  it  appears, unwilling to\t be  posted  in\t the
\nSecretariat   of  the  new  State  of  Bombay.\t They\twere
\naccordingly posted in the districts of the former States  of
\nSaurashtra and Kutch.\n<\/p>\n
Under Act 11 of 1960 called “The Bombay Reorganisation\tAct”
\nthe States of Gujarat and Maharashtra were carved out of the
\nterritory  of  the  new\t State\tof  Bombay.   Under  s.\t  81
\nprovisions  relating   to  services  other  than   All-India
\nServices  were\tmade  and  by S. 82  provisions\t as  to\t the
\ncontinuance  of officers in the same posts was made.  By  s.
\n83  power  was\tgiven  to the  Central\tGovernment  to\tgive
\ndirections  to the States.  Those provisions  were  substan-
\ntially the same as the provisions of ss. 115, 116 and 117 of
\nthe  States Reorganisation Act, 1956.  The  appellants\twere
\nallotted  to  serve in connection with the  affairs  of\t the
\nState of Gujarat under s.     81      of     the      Bombay
\nReorganisation Act.\n<\/p>\n
The newly constituted State of Gujarat finding a dearth of
\nexperienced  officers  in the  Secretariat  transferred\t the
\nappellants  at ,diverse times between the years\t 1961,\t1962
\nand  1963  to the Secretariat of the State  of\tGujarat\t and
\n‘assigned  them\t duties in connection with  the\t Secretariat
\nService.  Orders were issued from time to time fixing  their
\nscales of pay and seniority.  Apparently the Public  Service
\nCommission   raised  some  objections  about  an   attempted
\nintegration between the officers who were originally serving
\nin  the Secretariat Service, and those who were posted\tfrom
\nthe  districts.\t  Ultimately on August 19, 1966,  the  State
\nGovernment issued the order to the following effect :
\n“The  question\tof regularising the appointment\t to  various
\nposts  in  the Secretariat Department on and after  1st\t May
\n1960  of the drafted persons was under the consideration  of
\nGovernment  for\t some time.  Government is  now\t pleased  to
\ndirect,\t in  consultation with the  Gujarat  Public  Service
\nCommission,  that  the\tpersons shown  in  the\taccompanying
\nstatement should be treated to have been regularly appointed
\nin  the posts shown against their names in column-4  of\t the
\nstatement with effect from the date shown in column-5 in the
\nDepartments mentioned in column-3 of the statement.\n<\/p>\n
2.   As\t regards fixation of their pay and seniority  orders
\nhave  already been  issued in Government Resolution  General
\n\t      Administration  Department  No.  SCT-  1161-F,
\n\t      dated  25th April, 1961 and  Government  Reso-
\n\t      lution  General Administration Department\t No.
\n\t      SCT1162-KH,   dated  14th\t March\t1964.\t The
\n\t      Departments are requested to fix their pay and
\n\t      seniority accordingly.”\n<\/p>\n
519<\/span><\/p>\n
Appended  to the order was a list of 90 persons\t designating
\nthe  departments in which they were posted, posts  to  which
\nappointed and the dates from which they were appointed.
\nThe  officers of the Secretariat who before the date of\t the
\norder  constituted  the ministerial service then  filed\t the
\npetition  out  of which this appeal arises  challenging\t the
\nvalidity  of the order of the Government.  The petition\t was
\n,founded  on three grounds : (1) that the order violated  r.
\n138  of\t the Recruitment Rules framed by the  Government  of
\nBombay\tin 1957; (2) that the order violated the proviso  to
\ncl.  (6)  of  s. 81 in that it\taltered\t the  conditions  of
\nservice\t of  the applicants; and (3) that  it  violated\t the
\nprovisions    of   the\t Allocated   Government\t   Servants’
\n(Absorption, Seniority, Pay & Allowances) Rules, 1957.
\nCounsel\t for the applicants conceded before the\t High  Court
\nthat the transfer of the former Saurashtra and Kutch  States
\nSecretariat personnel to the Gujarat Secretariat per se\t was
\nnot  open  to objection.  The High Court  did  not  consider
\nwhether\t  the  Saurashtra  and\tKutch\tStates\t secretariat
\npersonnel  had “any rights flowing on account of  absorption
\nand  integration of service under the States  Reorganisation
\nAct,  1956  or the Allocated  Government  Servants’  Rules,,
\n1957.” But the High Court held that since the impugned order
\npurported  to  amalgamate the former  Saurashtra  and  Kutch
\nStates\tpersonnel  with\t the  Gujarat  Secretariat   Service
\ncontrary  to the terms of r. 138 of the\t Recruitment  Rules,
\nand  the Government had no authority to vary the  method  of
\nrecruitment  provided  by  the\tstatutory  r.  138  of\t the
\nRecruitment  Rules  which  was\tmandatory,  the\t orders\t  of
\ntransfer  to  the  Secretariat which was  not  made  in\t the
\nprocess of integration could not operate as absorption under
\nthe  Allocated Government Servants’ (Absorption,  Seniority,
\nPay & Allowances) Rules, 1957.\tThe High Court also observed
\nthat  when the ministerial service employees of\t the  former
\nSaurashtra  and Kutch States Secretariats were\tabsorbed  in
\nthe districts, integration of the services was complete\t and
\nany transfer thereafter to the Secretariat could not and did
\nnot -amount to absorption in equivalent posts.
\nIt is necessary first to examine the scheme of ss. 115 & 116
\nof  the\t States Reorganisation Act, 1956.  Section  115\t was
\nintended  to  provide  for  the\t conditions  of\t service  of
\nemployees  who\timmediately  before November  1,  1956\twere
\nserving\t in connection with the affairs of a State and\twere
\nallotted to serve in connection with the affairs of  another
\nState.\tPower to fix the conditions of service was  reserved
\nexclusively to the Central Government.\tFor that purpose the
\nCentral\t Government was authorised to establish one or\tmore
\nAdvisory  Committees  to  ‘advise  the\tGovernment  on\t the
\ndivision  and integration of the services in the new  States
\nand for ensuring fair and equitable treatment to all persons
\naffected by the
\n520<\/span>
\nprovisions  of\tS. 115 and for proper consideration  of\t any
\nrepresentation\tmade  by those persons.\t By the\t proviso  to
\nsub-s.\t(7) S. 115 a guarantee was given to  every  allotted
\npublic\tservant that his conditions of service shall not  be
\nvaried to his disadvantage except with the previous approval
\nof  the\t Central Government.  Section 116 provided  for\t the
\ncontinuance of officers in equivalent posts.
\nThis  Court  in N. Raghavendra Rao v.  Deputy  Commissioner,
\nSouth  Kanara,<\/a> -Mangalore(1) held that the effect of  sub-s.
\n(7) of s. 115 is to preserve the power of the State to\tmake
\nrules  under Art. 309 of the Constitution, but\tthe  proviso
\nimposes\t -a  limitation on the exercise of that\t power;\t the
\nlimitation  is that the State cannot vary the conditions  of
\nservice\t applicable immediately before November 1, 1956,  to
\nthe  disadvantage of persons mentioned in sub-ss. (1) &\t (2)
\nof  s.\t115.   In the view of the Court\t the  broad  purpose
\nunderlying  the\t proviso  to s. 115 (7) of the\tAct  was  to
\nensure\tthat the conditions of service shall not be  changed
\nexcept\twith the prior approval of the\tCentral\t Government,
\nthat  is,  before  embarking on varying\t the  conditions  of
\nservice, the State Governments should obtain the concurrence
\nof the Central Government.\n<\/p>\n
In Union of India & Anr. v. P. K. Roy & Ors. (2) this  Court
\nheld  that  it\tis the duty of\tthe  Central  Government  to
\nintegrate  the\tservices,  but the State  may  be  asked  to
\nprepare\t a provisional gradation list provided. the  Central
\nGovernment maintains its control over it.
\nIt  is\tclear  that the\t conditions  of\t service  applicable
\nimmediately  before  the appointed day in the  case  of\t any
\nperson who is allotted to another State cannot be varied  to
\nhis  disadvantage except with the previous approval  of\t the
\nCentral Government.  This protection could not be removed by
\nthe rules made by the State subsequent to November -1, 1956,
\nunless\tthe previous approval of the Central Government\t was
\nobtained thereto.\n<\/p>\n
It  is\ttrue that the ministerial service personnel  in\t the
\nStates of Saurashtra and Kutch, after they were allotted  to
\nthe  State  of\tBombay were posted and\tassigned  duties  in
\nvarious\t districts  in\tSaurashtra and Kutch.\tBut  in\t the
\nabsence\t of evidence to show that the previous\tapproval  of
\nthe  Central  Government  was obtained, their  right  to  be
\nabsorbed in equivalent posts in the new State of Bombay\t and
\nlater in the State of Gujarat was not thereby affected.\t  It
\nappears that there has riot been any equivalence established
\nbetween\t the  posts in the Secretariats. of  the  States  of
\nSaurashtra  and\t Kutch\tand the posts in the  new  State  of
\nBombay\tand:  later  in the State of Gujarat  to  which\t the
\nmembers\t of the ministerial service of the  Secretariats  of
\nformer Saurashtra and Kutch States were allotted.  The\tmere
\nfact that they were posted
\n(1) [1964] 7 S.C. R. 549.\n<\/p>\n
(2) [1968] 2 S. C. R. 186.\n<\/p>\n
521<\/span><\/p>\n
and  continued to render service in the Districts will\tnot,
\nin  our\t judgment, affect the right of the personnel  to  be
\nabsorbed  in the equivalent posts in the Secretariat and  on
\nterms  not  disadvanta-geous  to  those\t they  were  already
\nentitled  except with the previous, approval of the  Central
\nGovernment.\n<\/p>\n
It  was\t conceded,  and\t rightly, that\tthe  State  has\t the
\nauthority  to transfer, subject to the Constitution and\t the
\nrules  made  under  Art. 309 any public\t servant  to  render
\nservice which by his training and aptitude he was  competent
\nto  do.\t  Transfer  of\tthe personnel  from  the  States  of
\nSaurashtra  and\t Kutch to the Secretariat in  the  State  of
\nGujarat\t  and  assignment  of  duties  performable  by\t the
\nministerial  staff in the Secretariat cannot be\t challenged,
\nand  that because they were posted between 1956 and 1960  in
\nthe  Districts they will not be deprived of their  statutory
\nright under s. 115(7) proviso.\tPosting in the districts was
\nand must remain purely provisional, until final\t integration
\nis made by the Central Government.  It is common ground that
\nno  such  final\t integration had been made  by\tthe  Central
\nGovernment.\n<\/p>\n
Two grounds appealed to the High Court in deciding the case-
\nagainst\t the  appellants  : (1)\t that  the  appellants\twere
\ntransferred to the Secretariat of the State of Gujarat,\t but
\nthey  were  not absorbed in the ministerial service  of\t the
\nSecretariat  of\t the State of Gujarat.\tIn the view  of\t the
\nHigh   Court  there  was  merely  “regularisation”  of\t the
\nappointment  of those persons for the purpose of  performing
\nservice\t in  the Secretariat; and (2) that the\torder  dated
\nAugust\t19,.  1966 was-contrary to  the\t Recruitment  Rules,
\n1957.\n<\/p>\n
If  it be granted that the State was competent ‘to  transfer
\nand  did  transfer  the appellants  to\tperform\t service  in
\nconnection with the affairs of the State in the Secretariat,
\nit  is difficult to hold that when the\tState  “regularised”
\nthe  service of the appellants in the Secretariat  with\t the
\nconsent\t of  the  Public Service  Commission  there  was  no
\nabsorption under the Absorption Rules.\tIt is true that\t the
\nexpression “absorption” has not been used in the order,\t but
\nthat  will  not\t justify  an inference\tthat  there  was  no
\nintention  to absorb the former Saurashtra and Kutch  States
\npersonnel   in\t the  Secretariat.   In\t  the\tabsence\t  of
\ndetermination  of equivalent posts under the orders  of\t the
\nCentral Government, the State of Gujarat was competent, as a
\nmatter\tof  provisional\t arrangement to\t absorb\t the  former
\nSaurashtra  and\t Kutch States personnel in  the\t ministerial
\nestablishment  of the Gujarat State  Secretariat.   In-terms
\nthe  order  says that the persons named therein\t “should  be
\ntreated to have been regularly appointed in the posts  shown
\nagainst\t their names in column-4 of the statement”  appended
\nto   the  order.   That,  in  our  judgment,   amounted\t  to
\nabsorption.\n<\/p>\n
522<\/span><\/p>\n
Original r. 138 of the Bombay Civil Services  Classification
\nand  Recruitment Rules, 1939, was deleted and the  following
\nrule was substituted on May 22, 1957.  The relevant part  of
\nthe rule reads
\n“138.  The ministerial staff in the Secretariat and attached
\noffices is divided into two Divisions.\n<\/p>\n
(a)  Upper; and (b) Lower.\n<\/p>\n
(i)  Superintendents  :\t Appointments  shall  be  made\t by-
\npromotion from among Senior Assistants.\n<\/p>\n
(ii) Senior  Assistants\t :  Appointments shall\tbe  made  by
\npromotion from among Junior Assistants.\n<\/p>\n
(iii)\t  Junior  Assistants  : Appointments shall  be\tmade
\neither : –\n<\/p>\n
(a)  by\t  nomination  on  the  results\tof   a\t competitive
\nexamination held by the Bombay Public Service Commission, or\n<\/p>\n
(b)  by promotion from among members of the Lower Division.
\nProvided that ,not more than one out of every four vacancies
\nin the posts of Junior Assistants shall ordinarily be filled
\nby promotion.\n<\/p>\n
(2)  To\t  be  eligible\tfor  appointment  by  nomination   a
\ncandidate must\n<\/p>\n
(i)  hold  a  degree in Arts, law, science,  Agriculture  or
\ncommerce of a recognised University or possess an equivalent
\nqualification;\n<\/p>\n
(ii) have attained the age of 18 years; and\n<\/p>\n
(iii)\t  not have -attained the age of 30 years in the case
\nof   members  of  the  Lower  Division\tappointed   on\t the
\nrecommendation\tof  the commission and\twho  have  graduated
\nwhile in service and in any other case 24 years on the first
\nday  of the month immediately following month in  which\t the
\nposts are advertised by the Commission.\n<\/p>\n
B.   Lower Division\n<\/p>\n
(b)   Clerks, clerk-typists, typists : Appointments shall be
\nmade   by  nomination  on  the\tresults\t of  a\t competitive
\nexamination held by the Commission.\n<\/p>\n
523<\/span><\/p>\n
Provided  that\tsuitable members of Class  IV  services\t who
\nwhile  in  that service, have passed  the  Secondary  School
\nCertificate  Examination  or an\t examination  recognised  by
\nGovernment  as\tequivalent  to that  examination,  shall  be
\neligible   for\tappointment  to\t the  posts  of\t clerks\t  by
\npromotion.\n<\/p>\n
(2)  To\t be  eligible  for  appointment\t by  nomination,   a
\ncandidate must -.-\n<\/p>\n
(i)  have  passed  the\tsecondary  school  certificate\texa-
\nmination  or  an  examination recognised  by  Government  as
\nequivalent to that examination;\n<\/p>\n
(ii) have attained the age of 18 years; and\n<\/p>\n
(iii)\t  not have attained the age of 23 years on the first
\nday  of the month immediately following the month  in  which
\nthe posts are advertised by the Commission.
\nA  candidate  for the post of clerk-typist or  typist  must,
\nalso  be  able to type neatly and accurately  at  a  minimum
\nspeed of 40 words per minute.\n<\/p>\n
The  High  Court held that recruitment\tto  the\t ministerial
\nstaff  in the Secretariat could only be by nomination or  by
\npromotion   from  among\t members  of  the  Lower   Division,
\nnomination being on the result of a competitive\t examination
\nheld  by the Public Service Commission and  promotion  being
\nfrom the subordinate staff.  In view of this rule, according
\nto  the High Court, it was not open to the State  Government
\nto  adopt any other method of recruitment of the members  of
\nthe ministerial staff.\n<\/p>\n
Counsel for the appellants contended that r. 138 only  dealt
\nwith   the  existing  servants\tand  did  not  prevent\t any
\nadditional members from being amalgamated in the ministerial
\nstaff  in  the\tSecretariat.  He  also\tcontended  that\t the
\nrecruitment  did not amount to admission of an\tofficer\t for
\nthe  first time in the service.\t It is unnecessary  for\t the
\npurpose of this appeal to consider these arguments.   Assum-
\ning  that  r.  138 requires the State to  follow  a  certain
\nmethod for recruitment to the ministerial service, that rule
\nmade under Art. 309 of the Constitution cannot take away the
\nstatutory  right  vested  in the  personnel  of\t the  former
\nSaurashtra  and Kutch States which they acquired  under\t the
\nStates\tReorganisation Act, 1956, to hold posts in the\t‘new
\nState  which  were equivalent and on terms which  were\tnot,
\nunless the previous approval of the Central Government was
\n524<\/span>
\nobtained,  disadvantageous.  Since the arrangement which  is
\nmade  by  the  Government of the State of  Gujarat  must  be
\nregarded as provisional and to enure so long as the  Central
\nGovernment does not make a final decision, it is not open to
\nthe  officers of the Secretariat to challenge the  authority
\nof  the\t Government of Gujarat either to  transfer  officers
\nfrom the Districts and to post and assign them duties in the
\nSecretariat  or\t to fix their pay and  seniority  among\t the
\nofficers in the Secretariat performing ministerial duties.
\nThe appeal must therefore be allowed and the order passed by
\nthe High Court must be set aside.  The petition filed by the
\nrespondents Nos. 2 to 148 will stand dismissed.\t There\twill
\nbe no order as to costs throughout.\n<\/p>\n
G.C.\n<\/p>\n
Appeal allowed.\n<\/p>\n
525<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. D. Shukla & Ors vs State Of Gujarat & Ors on 6 February, 1970 Equivalent citations: 1971 AIR 117, 1970 SCR (3) 515 Author: S C. Bench: Shah, J.C. PETITIONER: M. D. SHUKLA & ORS. Vs. RESPONDENT: STATE OF GUJARAT & ORS. DATE OF JUDGMENT: 06\/02\/1970 BENCH: SHAH, J.C. BENCH: […]<\/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-245741","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. D. 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