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K.S. Hegde, J.—These petitions, under Article 226 of the Constitution, raise identical questions for decision. Therefore, they could be dealt with together.
On the eve of the reorganization of States in 1956, the petitioner in W.P. No. 834/63 was serving as an Assistant Superintendent in the Civil Branch of the High Court of Judicature at Bombay. At that time, the petitioner in W.P. No. 835/63 was serving as a Clerk in the same High Court. The Central Government allotted both of them to the New High Court of Mysore. This Court consists of Officers drawn from the former High Court of Mysore as well as those allotted to this State from the former States of Bombay, Hyderabad, Madras and Coorg. Hence, it became necessary'' to integrate the services. The Hon''ble Chief Jusice has passed certain Orders, as regards equation of posts and fixation of seniority, on various dates, namely, 25-8-1958, 11-4-1963 and 17-4-1963. The petitioners appear to be aggrieved by those orders. They filed their objections to those orders. They moved the Registrar of the High Court to refer their objections to the Central Government for its decision u/s 115(5) of the States Reorganization Act, 1956 (to be hereinafter referred to as the "Act"). Their prayer has been refused. Hence these petitions.
In these petitions, the petitioners have prayed that this court may be pleased to quash the orders passed by the Hon''ble Chief Justice in R.O.C. 1989 of 1958, dated 25-8-1958, ll-4-1963 and 17-4-1963 including the seniority list issued, by the issue of Writ of Certiorari or other appropriate Writ, Order of direction. They further asked for a Writ of Mandamus or other appropriate Writ directing the Registrar to forward the order of the Hon''ble Chief Justice dated 22-2-1958 together with the seniority list along with the objections filed thereto, to the Central Government for its decision.
The petitioner, in W.P. No. 834/63, has in addition sought a Writ of Mandamus or other appropriate Writ or Order directing the 2nd respondent to equate the petitioners post of Assistant Superintendent held by him when he was in the High Court of judicature at Bombay with that of the Superintendent in the new High Court of Mysore and direct preparation of the Inter-state Seniority list on the said basis. The petitioner in W.P. No. 835/63 has prayed for a Writ of Mandamus or other appropriate Writ or Order directing the 2nd respondent to equate the post held by him with that of the First Division Clerk in the new High Court of Mysore and direct the preparation of the Inter-State seniority list on the said basis taking into consideration only the services rendered by the Officials in one or the other of the High Courts.
According to the petitioners, the ultimate power to decide the question of equation of posts and the determination of seniority rests with the Central Government in view of S. 115 of the "Act". Their submission was that the power of the Hon''ble Chief Justice to determine the conditions of service of the High Court Staff available to him under Article 229 of the Constitution even if it is held to include the power to integrate the services stood modified in view of the provisions of the "Act". It was urged that he has no power to integrate the services in this High Court.
Their further case was that in determining the seniority in a particular cadre, the only relevant consideration is the continuous service of the Official concerned in the particular cadre, in the High Courts and the Hon''ble Chief Justice was not right in taking into consideration their services in the subordinate courts. They also challenged the correctness of the equations, made by the Hon''ble Chief Justice. According to them, that equation is not in accordance with the objective evolved at the conference of the representatives of the concerned States, held at Delhi in May 1956.
In his Counter-affidavit, the 1st respondent had taken the contention that this Court has no jurisdiction to issue a Writ against the Hon''ble Chief Justice. It was further pleaded therein that the Central Government is not competent to integrate the services in the High Court; that power exclusively rests with the Hon''ble Chief Justice in view of Article 229 of the Constitution; the Hon''ble Chief Justice is not bound by the instructions issued by the Central Government in the matter of integration but yet the orders passed by him are in accordance with the tests evolved at the Delhi Conference.
The objection to the jurisdiction of this Court to issue a Writ, order or direction to the Hon''ble Chief Justice under Article 226 of the Constitution was not passed at the hearing. Therefore, that question does not arise for decision.
In the course of his arguments Sri H.B. Datar, the learned counsel for the petitioners formulated the following three grounds of attack against the Orders impugned in these petition. They are:
The Hon''ble Chief Justice has no jurisdiction to make a final equation, in view of section 115(5) of the "Act".
For the purpose of determining the seniority in any particular cadre, services rendered in the lower Courts should not have been taken into consideration: and
The equation made by the Hon''ble Chief Justice is not in accordance with the principles laid down at the Delhi Conference.
The most important question for decision is as to who is the final authority to integrate the services of this High Court -- is it the Hon''ble Chief Justice or is it the Central Government? If we come to the conclusion that the power to integrate the services in question vests with the Central Government, then the other questions urged do not arise for consideration as those questions will have to be decided by the Central Government itself. Therefore, the primary question that falls for decision is as to the authority competent to make the integration in question.
The contention of the respondent was that that power vests with the Hon''ble Chief Justice, whereas according to the petitioners, it falls within the exclusive jurisdiction of the Central Government. Article 229(2) of the Constitution says:
Subject to the provisions of any law made by the Legislature of the State, the conditions of service of Officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. ...
Admittedly, the Legislature has not enacted any statute prescribing the conditions of service of Officers and servants of the High Court. Therefore, the Hon''ble Chief Justice can by rules prescribe their conditions of service. We do not know whether there are any such rules. For the purpose of these cases, we shall proceed on the basis that there are such rules. We shall further assume, without deciding, that the expression "conditions of service" found in Article 229 includes the power to integrate the services.
The powers given to the Chief Justice under Article 229 is more or less similar to those given to the Governor under Article 309. But the real question for decision is whether those powers, namely, those conferred on the Hon''ble Chief Justice under Article 229 as well as those conferred on the Governor under Article 309 in so-far as they relate to the division and integration of the services among the new States which includes Mysore and the States of Andhra Pradesh and Madras stood abridged in view of the provisions contained in the "Act".
The Supreme Court in Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, observed:
Officers and members of the Staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State'' and also of the phrase "a person who is a member of a Civil Service of a State" as used in Arts. 310 and 311. The salaries of these persons are paid out of the State funds as appears from Art. 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of Officers and servants of the High Court, are chargeable upon the consolidated Fund of a State.
The Item relating to such administrative expenses has to form part of the annual financial statement to be presented to the State Legislative Assembly "under Article 202 and estimates, thereof can form the subject matter of the discussion in the Legislature under Article 203 (1). They must, therefore, be taken" to hold posts in connection with the affairs of the State and to be members of the Civil Service of the State..........
Section 115(1) of the "Act" provides for the division of services in certain existing States, their allotment to the New States (Mysore being one) and the States of Andhra Pradesh and Madras, and the integration of the Services in the New States and the States of Andhra Pradesh and Madras. Section 115 takes within its fold all Officers serving in connection with the affairs of the Union or the States mentioned therein. Hence, the Staff of this High Court are entitled to the protection guaranteed by that provision. It may, be noted that the entire staff of this High Court as on 1-11-1956 were either deemed to have been allotted to this Court under S. 115, or were actually allotted to this Court by the Central Government. The Hon''ble Chief Justice of this Court had no say in the matter. Hence, section 115(5) governs the integration of the services in this Court. That means that the power to integrate these services vests with the Central Government. Section 115(5) reads:
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 representations made by such persons.
From what has been stated above, it is clear that the petitioners are persons who are affected by the provisions of Section 115. Clause (b) of sub-section (5) of section 115 has charged the Central Government with the duty of ensuring fair and equitable treatment to all persons affected by the provisions of that section. As mentioned earlier, the petitioners are persons affected by the provisions of that section.
10a. In M.A. Jaleel v. State of Mysore, (1961) 39 Mys LJ 425: (AIR 1961 Mys 210) this Court laid down that though the power to integrate its services would normally have formed part of the executive power of the new State of Mysore with the enactment of section 115(5) of the "Act", the New State of Mysore had been deprived of its power to make an integration. Similar appears to be the position as regards the powers of the Chief Justice under Article 229.
The above conclusion of ours gains support from the decisions of this court in D.R. Gokharn v. The Hon''ble Chief Justice, W.P. No. 1470 of 1961 (Mys). Gokharn was a Section-Writer in the High Court of Bombay, before the reorganization of the States. He was allotted to the New State of Mysore and consequently took up service in this Court. He was dissatisfied with the provisional seniority list prepared. He thought that because of that list his juniors had been promoted. He challenged their promotions and incidentally challenged the correctness of the seniority list got prepared at the instance of the Hon''ble Chief Justice and also questioned the correctness of the equation made. The reliefs prayed for by him were rejected for the following reasons:
The equation of posts for the purpose of integration to be made under sub-section (5) of section 115 of the States Reorganization Act is entirely within the competence of the Central Government and as pointed out by this Court in (1961) 39 Mys LJ 425 : (AIR 1961 Mys 210) the provisional equations which may be possible until the Central Government makes the final equations, are only for the purpose of carrying on the day to day administration. Obviously that equation was made in February 1958 by which the post of a Section Writer was equated with the post of a first division clerk. It has been explained in the counter affidavit of which the deponent is the Deputy Registrar of this Court that that equation Required variation by reason of the objections made to it which this Court accepted as well founded, and, if for that purpose another equation was made in August 1958 which this Court found just and reasonable, it is hardly possible for the petitioner to suggest that once an equation was made, however erroneous it was, that equation was irrevocable without this court having power to vary that equation. Although normally an equation once made must continue until the same is finalized by the Central Government, no one can suggest that that equation, however wrong it is, must be perpetuated and must be allowed to continue until the final integration is made by the Central Government. An equation once made can, in exceptional cases, be varied and it seems to me that this case is one such.
We are of the opinion that the power given to the Central Government u/s 115(5) as regards matters enumerated therein overrides the power given to the Chief Justice under Art. 229 of the Constitution.
The "Act" was enacted by Parliament in view of the power conferred on it by Articles 2, 3 and 4 of the Constitution. In view of Article 2, Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. Article 3 says:
Parliament may by law--
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State:
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the State, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired." Article 4 says:
(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) ''as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.
(Underlining (here into'' '') is ours).
Provisions in part X of the "Act" are incidental to the scheme of the reorganization of States. They have been enacted for the purpose of giving effect to the reorganisation scheme and to protect the interests of those public servants who are affected by the reorganisation. But, for those provisions, no one would have had the power to divide the services in the existing States and allot some of them to the new States. In order to render justice to the service personnel allotted to the New State and to avoid any possibility of their being discriminated against it was thought necessary to entrust the powers mentioned in S. 115 to the Central Government. The power conferred by the Central Government under S. 115 is a special power. It is designed to meet a special need. Hence, in matters falling within the scope of S. 115, the power given to the Central Government is exclusive. It overrides the power given to the State under Article 162 or that given to the Governor under Article 309 or that given to the Chief Justice under Article 229. The validity of S. 115 was not challenged before us. Its validity had been upheld by this Court in Jaleel''s case, 1961 39 Mys LJ 425: (AIR 1961 Mys 210).
For the reasons mentioned above, we are of the opinion, that the power to integrate the services of this Court which power includes the power to equate the posts is exclusively that of the Central Government. Orders passed by the Hon''ble Chief Justice in that regard are merely provisional in character. Under law, the only authority competent to integrate the services in this High Court is the Central Government. That being so, the Registrar is bound to send up all the papers to the Central Government including the representations received from the petitioners.
In view of our above conclusion, it is neither necessary nor proper for us to pronounce on the other two contentions formulated by Sri Datar. It is the duty of the Central Government to examine those contentions and arrive at its own conclusions, in accordance with the provisions contained in S. 115. Hence, we refrain from going into those contentions.
For the reasons stated above there is no need to quash any of the orders made by the Hon''ble Chief Justice and issued by the Registrar, under his orders. The only relief we can give to the petitioners is to direct the Registrar of the High Court to forward the representations made by them in the matter of integration of the services to the Central Government, so that it may be in a position to take action under S. 115(5) of the ''Act''.
After we read out our judgement and before we came to the question as to the relief to be given to the petitioners the learned Government pleader appearing for the respondents, viz., the Registrar of this High Court {first respondent) and the Hon''ble the Chief Justice (2nd respondent) gave us an assurance that in view of the conclusions reached by us earlier, the respondents will send up all the relevant papers to the Central Government for taking steps under S. 115(5) of the ''Act''. In view of this assurance we do not think that there is any need to give any direction. We accordingly make no further orders in the matter. No costs.