# [1968] 2 S.C.R. 186

- **Citation:** [1968] 2 S.C.R. 186
- **Court:** Supreme Court of India
- **Decided:** 1967-11-09
- **Bench:** K. N. Wa:-.'Choo. C.J, R. s. BACllAWAT, V. Ramaswa~11. G. K. Mitter, K. S. Hegde. Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-2-s-c-r-186-4306
- **Pages:** 17

## Headnote

States Reor1:anisation Act (37 of 1956), s. 115(5)-Power of Cen1'a/
Ciovernment to fix sentority of offu·~rs in rc-orgcl111'.H·d Statt•\·-Prt·lin1ina,.y work done hy Stale Govern1nent.}-/ f i111proper dele~ation.
Natural J11sticl"--Application of rules-Depends
on facts of
each
case.
Respondents 1 to 13 were Assistant Engineer, in the State of Madhva
Pradesh before it "-'a-; ~organised under the States Reorganisation Act.
1956.
After the formation of the new Sta~ of \-ladhya Pradesh. thcv
continued to serve in th~ new State along with officers taken O\.'Cr fron1
the absorbed States and regions. and. it became
necessary
to
integrate
the service and to fix the inti!r se seniority of the officers of the integrated
si:rvice.
The Chief Secretaries of tbc various Slates that were to be
affected by the roorganisatioo had evolved certain general principles 1hat
!'hou!d be observed with regard to the integration ""·ork and the Government of India informed the State Governments that the work of inrcg,ration of -serviCL"S should be dealt v.·itb by the State Government<> in
1he light of those principle-;.
Thercafll'f, the Stale Government published a
provi~ional gradation list of the department to \\o'hich 1he rec.-
pondcnt.'\ tx.·longcd and notified, that
any go\crnml'Ot
~rvant
f·:clin~
aggriC"tcd was cnlitlcd to send his represco1ation to the ('entral Government.
Representations v.·cre received from respondent-; 1 to 4, 6 and 7
and .some other officers. and th:>sc representations were sent by the State
Government to the Central Go..,·ernment for being dealt with in con~ulta
tioo with the Advisory Committee it had conc,titutcd for dealing v.1ith
lhe representations from officers affected hy _the rcorgani'Sation.
Since
the St.ah..· Government had prepared the lic,t on a basis different from thJt
!.uggest1..'\J hv the Central GO\.'Crnmcnt the latter dirt."'ClCJ that a revised !isl
5;hould IJC prepared on the b~is of the formula laid dov.11 by the C·.!ntral
Ciovcrnmcnt.
Accordingly, the State (Jo..,·L·rnn1cnt [)C'flt a second Ji,t prcPlf;!d on the basis of that formula, <tnJ
the ("cntral
Go\-·emmcnt.
:n
con...1:iult.1tion with the Ad,·isory Committee. cxan1ined both the
li"-h
.tnd
1h~ rerre5entations of ofticers already rC'Ccivc<l
and
decided th:it
the
.-,L-cond gradation lis1· should be approvcJ subjcc1 to C4.'rtain modific,itton-..
and cert.:Un directions in the case of officers from the Mahakoshal region.
It wa ... further directed that as the rc-arran~emcot a~ per modificationc,
suggt.."h.'d v.·:tc; likely Ill 3fTect the rank-. l,f officer.. of other
~!!ion-.. thl'
entire list should he rcvicv.red in 1hc light ol dirccticm" f!t\'l'n hy the
('c.utral Govemm-ent.
On 1his dircclion. the Stall' Governmt:'nt rcfi.\ed
the lnt,·r 5(' senioritv of officers fron1 the !\-1ahakoshal rL'gion. and thereafter. pr .... .,,arcd the tlnal .~radation lic.t and published it.
'Th.t., f\.~dcnt' thcrcup.cm filed tt v.·rit
petition
in
the J-i'igh
Co11rt
challenging the v;tlidit~· of the final !!f:tdation
li~t on two ~round-. : ( 1)
thal the Y1nrk of
intcf!ration was
c_~clu-.iv~ly entrn ... tt"d to'thc
Central
Government hv s. I IS ( 5) of the Stale-. Reorgani-.:irion Act anJ that tt~
final gr3i.1Jtion ·li-;t a:- puhli,hed ,,_."" ilh:-gJI :1.0d
11/tra ~·ir1'.'i
hec;H1.;c,"-tll1..T1..'
Y.'<ts L'!lprl"p .. :r delt:'gation of its po\l\.·ers and duties hy the Central Govern-
...
A
8
c
D
E
G
A
B
c
D
E
UNION OF INDIA V. p. K. ROY
187
mcnt to the State Government, and; (2) in the circumstances of the
present case the respondents· should have been given another opportunity
of making a representation before drawing up the final gradation list.
The High Court allowed the petition.
In apl'C'll to this Court.
Held : ( l) Even on the assumption that the task of integration was
exclusively entrusted to the Central Government, the High Court W"-' in
error in holding that there was imoroper delegation of its statutory power
by the Central Government.
[200G]
In the present cas

## Text

_Characters 0–39,952 of 47,562. This is a partial read: ask again with offset=39952 for what follows._

Ul'ilON OF I!'IDIA & ANR.
P. K. ROY & ORS.
November 9, 1967
[K. N. WA:-.'CHOO. C.J., R. s. BACllAWAT, V. RAMASWA~11.
G. K. MITTER AND K. S. HEGDE. JJ.J
States Reor1:anisation Act (37 of 1956), s. 115(5)-Power of Cen1'a/
Ciovernment to fix sentority of offu·~rs in rc-orgcl111'.H·d Statt•\·-Prt·lin1ina,.y work done hy Stale Govern1nent.}-/ f i111proper dele~ation.
Natural J11sticl"--Application of rules-Depends
on facts of
each
case.
Respondents 1 to 13 were Assistant Engineer, in the State of Madhva
Pradesh before it "-'a-; ~organised under the States Reorganisation Act.
1956.
After the formation of the new Sta~ of \-ladhya Pradesh. thcv
continued to serve in th~ new State along with officers taken O\.'Cr fron1
the absorbed States and regions. and. it became
necessary
to
integrate
the service and to fix the inti!r se seniority of the officers of the integrated
si:rvice.
The Chief Secretaries of tbc various Slates that were to be
affected by the roorganisatioo had evolved certain general principles 1hat
!'hou!d be observed with regard to the integration ""·ork and the Government of India informed the State Governments that the work of inrcg,ration of -serviCL"S should be dealt v.·itb by the State Government<> in
1he light of those principle-;.
Thercafll'f, the Stale Government published a
provi~ional gradation list of the department to \\o'hich 1he rec.-
pondcnt.'\ tx.·longcd and notified, that
any go\crnml'Ot
~rvant
f·:clin~
aggriC"tcd was cnlitlcd to send his represco1ation to the ('entral Government.
Representations v.·cre received from respondent-; 1 to 4, 6 and 7
and .some other officers. and th:>sc representations were sent by the State
Government to the Central Go..,·ernment for being dealt with in con~ulta
tioo with the Advisory Committee it had conc,titutcd for dealing v.1ith
lhe representations from officers affected hy _the rcorgani'Sation.
Since
the St.ah..· Government had prepared the lic,t on a basis different from thJt
!.uggest1..'\J hv the Central GO\.'Crnmcnt the latter dirt."'ClCJ that a revised !isl
5;hould IJC prepared on the b~is of the formula laid dov.11 by the C·.!ntral
Ciovcrnmcnt.
Accordingly, the State (Jo..,·L·rnn1cnt [)C'flt a second Ji,t prcPlf;!d on the basis of that formula, <tnJ
the ("cntral
Go\-·emmcnt.
:n
con...1:iult.1tion with the Ad,·isory Committee. cxan1ined both the
li"-h
.tnd
1h~ rerre5entations of ofticers already rC'Ccivc<l
and
decided th:it
the
.-,L-cond gradation lis1· should be approvcJ subjcc1 to C4.'rtain modific,itton-..
and cert.:Un directions in the case of officers from the Mahakoshal region.
It wa ... further directed that as the rc-arran~emcot a~ per modificationc,
suggt.."h.'d v.·:tc; likely Ill 3fTect the rank-. l,f officer.. of other
~!!ion-.. thl'
entire list should he rcvicv.red in 1hc light ol dirccticm" f!t\'l'n hy the
('c.utral Govemm-ent.
On 1his dircclion. the Stall' Governmt:'nt rcfi.\ed
the lnt,·r 5(' senioritv of officers fron1 the !\-1ahakoshal rL'gion. and thereafter. pr .... .,,arcd the tlnal .~radation lic.t and published it.
'Th.t., f\.~dcnt' thcrcup.cm filed tt v.·rit
petition
in
the J-i'igh
Co11rt
challenging the v;tlidit~· of the final !!f:tdation
li~t on two ~round-. : ( 1)
thal the Y1nrk of
intcf!ration was
c_~clu-.iv~ly entrn ... tt"d to'thc
Central
Government hv s. I IS ( 5) of the Stale-. Reorgani-.:irion Act anJ that tt~
final gr3i.1Jtion ·li-;t a:- puhli,hed ,,_."" ilh:-gJI :1.0d
11/tra ~·ir1'.'i
hec;H1.;c,"-tll1..T1..'
Y.'<ts L'!lprl"p .. :r delt:'gation of its po\l\.·ers and duties hy the Central Govern-
...
A
8
c
D
E
G
A
B
c
D
E
UNION OF INDIA V. p. K. ROY
187
mcnt to the State Government, and; (2) in the circumstances of the
present case the respondents· should have been given another opportunity
of making a representation before drawing up the final gradation list.
The High Court allowed the petition.
In apl'C'll to this Court.
Held : ( l) Even on the assumption that the task of integration was
exclusively entrusted to the Central Government, the High Court W"-' in
error in holding that there was imoroper delegation of its statutory power
by the Central Government.
[200G]
In the present case the stel'S take~ by, the Central Government in the
matter of integration did not amount to any delegation of its essential
•tatutory functions, becaUSe it was the Central Government which laid
d°""1 the principles for integration. it
was the Central
Government
which considered the representations and passed final orders, and both
the preliminary and final gradation lists were prepared and published bv
the State Government under the direction and with the sanction of the
Ceneral Government.
When the Centm! Government intimated that
the work of integration should be left to the State Government what w""
meant was that only the preliminary work of preparation of the gradation
List on the principles decided upon by the Central Government should be
left to the State Government concerned. Such work cannot be done by
the Central Government itself as the necessary information regarding tho
officers can be obtained and tabulated only by the States concerned, and.
there i• nothing in ss. II5 or 117 of the Act
prohibiting the Central
Governm~t in any way, from taking the aid and assistance of tr.e State
Go-.·crnment in the matter of effecting the integration of the services. The
principle dele1:atus non potest delegare, cannot be held' to have been violatl.'d, if a statutory authority empowers a deleg:ite to undertake preparatory
work and to take an initial decision in matters entrusted to it but retain~
in it> own hands the power to approve or disapprove the decision after
1t has been taken. In such a ""Se the decision will be held to have been
validly made if the degree of control maintain""....d by the 1authority is close
enough for the decision to be regarded as the authority's own. [I98E-H;
!99D-G]
Pradyat Kui1uir Bose v. The Hon'ble The Chief .lusrice of the Calcutta
f{;Rfi Court, [1955] 2 S.C.R. 1331, followed.
F
Board of Education v. Rice, [1911] A.C. 179. Local Government Board
H
v. Arlid11e [1915] A.C. 120 and Fowler (John) & Co. (Leeds) v. Duncan
[!941] Ch. 450. referred to.
(2) The doctrine of natural justiec cannot b' imprisoned within the
'trait-jacket of a rigid formula and its application depend' upon the nature
of the jurl>diction conferred on the administrative
authority,
upon the
character of the rights of !00 persons affected, the icheme and policy
of ~ , "1tute- and other relevant circumstances disclosed in a particular
ca..e.
In view of the $pedal circumstances of the present case the restJOa<.lc:nts 'ili'ere entitled to a se-.!Ond opportunity to make a representation
with regard to (a) the inter se seniority list of the assistant engineers of
the Mlhakoshal region prepared as per the directions of the Central
Government. and (b) the combined final gradation list.
A' no such
opportunity wa.• furnished, the final list. so far as the category affected
by tho direction5l given by the Central Government. wa.;:, ultra ,,;res and
illegal and that part of the notification mu<t be quashed. [202D-O]
CIVIL APPEL LA TB JURISDICTION :
Civil Appeal No. 618 of
1966.
188
SUPREME COURT REPORTS
[1968] 2 ~CR
Appeal by special leave from the judgment and order dated
A
April 29, 1964 of the Madhya Pradesh High Court in
Misc.
Petition No. 3 71 of 1962.
·
Niren De, Solicitor-General, · V. A. Seyid M11ha11wJ,
R. N.
Sarlzthey, for R. II. Dhebar, for the appellants.
A. K. Sen, Rames/nvar Nath
and
Mahinder Narain,
for
B
resr.•ndents Nos. I. 3. 6, 10, 12 and 13.
The Judgment of the Court was delivered by
Rartaswami, J.
This appeal is brought, by special leave. from
the judpnent of the ~adhya Pradesh High Court dated April 29.
1964 in Miscellaneous Petition No. 371 of 1962. By its judgment
the High Court held that the preparation of provisional gradation
li<>ts by the State of Madhya Pradesh under the relevant provisions
of the States Reorganisation Act, 1956 (Act 37 of 1956), hereinafter referred to as the "said Act". was unwarranted in law and
the final list published on April G, 1962 prepared by the State
Government under instructions from the Central Government with
regard to the integration of oflicers of the Engineering Department
was illegal and 11/trn rircs and must be qu<1'hcd by the grant of a
\\ rit.
The said Act was enacted to provide for the reorganisa1ion of
the States 0f India and for matter.s connected therewith and came
into force with effect from '.\/ovemhcr I. 1956.
Bys. 9( I) of the
,aid Act th2rc 11 '" fonncJ a "new Staie·· ro be known as the State
of Ma<lhya Pradesh comprising the foll<' II ing tcrritork.s :
"(a) !he 1crr!toric1 of the e\isting Slate of Madhya
Pr;1desh, except the di1tricts mentioned in clause
( e) of sub-section ( J ) of section 8:
c
D
E
I b) the tcrritorie' of the e'isting Stale of Madhya
F
Bharat, except Suncl tappa of Bhanpura lahsil
of !'v!andsaur district:
( c) Sironj sub-division of Kotah district in the
existing State of Rajasthan;
( d) the territories of the existing State of Bhopal.
and
( e) the territories of the cxistin~ State of Vindhya
Pradesh;"'.
-
Respondents I to 13 were Assistant Engineers in the er.stwhile
Stale of Madhya Pr~dcsh. The first four of them were appointed
'" such on probation from October 27. 1956 and the others had
been appointed as temporal)' Engineers.
The rc;ponGents continued to serve in the n~w Stale and a new "Buildings, Roads and
G
.'
''
,
'\
UNION OF 1NDIA v. P. K. ROY (RamaSl\'illl!i, l. \
189
A
Irrigation Branch of the Public Works Department"" was constituted with the officers taken over from the absorbed States and
regions.
The integration of the services became therefore necessary and a principle had to be evolved for integration. of the services and fixing inter .1e seniority as several officers had been taken
over into the reconstituted branch.
Section 115 of the said Act
B
provided as follows :
c
D
E
p
G
H
"115. Provisions relating to other services :
(I) Every person who immediately before the
appointed day is serving in connection with the
affairs of the Union under the administrative
control of . the Ljeutenant-Governor or Chief
Commissioner in any of the existing States of
Ajmer, Bhopal, Coorg, Kutch and Vindhya
Pradesh, or is jerving in connection with the
affairs of any of the existing States of Mysore.
Punjab, Patiala and East Punjab States Union
and Saurashtra shall, as from that day, be deemed
to have been allotted to serve in connection
with tne affairs of the .successor State to that
existing State.
.
'
.
(2) Every person who inunediately before the appointed day is serving in connection with the
affairs of an existing State part of whose territo
ries is transferred to another State by the provisions of Part II shall, as from that day, provisionally continue to serve in connection with the
affairs of the principal successor State to that
existing State, unless he is required by general or
special order of the Central Government to
serve provisionally in connection with the affairs
of any other successor State.
( 3) As soon as may be after the appointed day, the
Central Government shall, by general or special
order, determine the succcs~or State to which
every person referred to in sub-section (2)
shall be finally allotted hr service and the date
with effect from which such allotment shall take
effect or be deemed to have taken effect.
( 4) Every person who is finally allotted under the
provisions of sub-section ( 3) to a successor
State shall, if he is not already serving therein
be made available for serving in that successor
State from such date as may be agreed upon
between the Governments·· concerned. and in
190
SUPRF.ME COURT REPORTS
[ 1968] 2 S.C.R.
default of such agreement, as may be determined
A
by the Central Government.
·
( 5) The Central Government may by order establish one or more Advisory Committees for the
purpose of assisting it in regard tcr-
(a) the division and integration of the services
among the new States and the States of
Andhra Pradesh and Madras; and
B
(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
C
such persons.
"
....................................
Section 116 provided for :he continuance of officers in the posts
they previously held and s. 117 empowered the Central Go\·ernment to give directions to the State Government in respect of their
D
integration.
Section 1 I 7 enacts :
"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."
Subsequent to the passing of the said Act a meeting of the
Chief Secretaries of the various States that were to be affected by
the reorganisation was held at Delhi on May 18 and 19, 1956 at
the invitation of the Central Government.
In this meeting certain
~ecisions were taken as to the general principles that should be
observed with regard to the integration work. By their letter No.
62/22/56 SR 11 dated April 3, 1957 (Annexure R-I of the
counter-affidavit) the Government of India informed the State
Governments 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 '.lecided in the meeting of the
Chief Secretaries.
The State Governments were also informed
that the Central Government was constituting Advisory
Committees for assisting them in dealing with the reprcsentatiotLs from
the officers affected by reorganisation.
With regard to the prin·
ciple for detennining equation of posts and relative seniority the
following conclu~ions were reached at the conference of the Chief
Secretaries :
E
F
G
H
!
•
8
c
D
•
E
F
G
H
•
UNION OF INDIA·-v. P.:K. ROY·.(Ramaswami, J.)
'
.
:
"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) .th,e responsibilities and powers exercised· by the -
officer holding a post; the extent of territorial or
other charge held or responsibilities discharged;
'
the minimum qua:lifications, if.any, prescribed for
reeruitment to the post;
-
(~v) the salary of the post;·,
It was agreed that in determining relative seniority
as between two persons holding posts declared equivalent
to each other, and drawn from different States, the
following points should be taken into account :-
191
(i) Length of continuous service, _whether tempo__
rary. or permanent, in a particular grade; thls . --
should exclude periods ·for which 'an appoint-· ;
ment 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 seniority of officers drawn from _the same State
should not be disturbed."
Ily a notification dated May~20,' 1958 (Annexure R-2 of the
counter-affidavit) the Government of India constituted a Central
Advisory Committee under s. 115(5) of the said Act for the purpose of assisting the Central Government in dealing :with· the pro- _
blems arising out of the allocation and integration of the services.
The functions of the Committee were : . .
·
"(i)
(ii)
To advise the Central" Government in regard to
the division and integration of members of the
·gazetted cadres of the State Services among the
new States and the States of Andhra Pradesh.~nd
Madras, and
~
---
To make reco111111endations to .the Central Gov- .
ernment with.a view to enstire that fair and equitable treatment is given to the service personnel _
belonging to the Gazetted cadres of the State
Services who are affected by the State Reorgaqi_
sation ·and to consider representations submitted ..
by them."
·
·
·
192
SUPREME COURT REPORTS
[1968] 2 SC.R.
As directed by the Central Government, the State Government
also appointed the necessary committees to undertake the
prc'liminary work of integration.
On September 12, 1959 a provisional
gradation list of the department to which the
respondent>
bclongee was published by the State Government by notilieation l\o.
3175-Integ. dated September 12, 1959.
In the preamble attached
to the provisional list the principles (which were already approved
by the Central Government) on the basis of which the lish were
prepared, were set out.
But there was a proviso to cl. ( 2) of the
preamble which said that .. where a service or cadre consi;ts of
compartments/ grades and where the normal method of recruitment to a higher compartment/grade is by promotion from a lower
compartment/ grade, continuous service will
ordinarily be
reckoned from the date of commencement of service in the lowest
compartment/grade, on a salary not below such limit as may be
specified in this behalf...
Representations were received from
several officers including resj)Ondents 1 to 4, 6 & 7.
These representation_s were sent by the State Government to the Central Government for being dealt with in consultation with the Advisory
Committee it had constituted.
Thereafter a reference was made
by the State Government to the Central Government seeking its
directions regarding publication of the final lists.
In reply thereto the Central Government conveyed its decision by a letter dated
November 11, 1959 to the following effect :
"I. The State Government should publish the final
common gradation list in its oflicial gazette following
the prescribed procedure:
2. The State Government will prefix to the notifica-
<ion publishing a common gradation list. a preamble on
the lines drafted by the Central Government;
3. The State Government was to be satisfied :
(a) that the provisional gradation list was prepared
after following the principles laid down by the
Central Government;
( b) that it was published in the official gazette;
(c) that an opportunity was afforded to the service
personnel to make representations;
( d) that the representations, if any, had been decided by the Central Government in consultation
with the Central Advisory Conunittee;
( e) that the decisions of the Central Government were
correctly incorporated in the final common
gradation list."
A
B
c
D
E
F
G
H
B
c
It
E
F
G
H
UNION OF INDIA v. P. K. ROY (Ramaswami, J.)
193
In their letter dated August 29, 1960 the Central Guvernment
pointed out that .the State Government had prepared the provisional gradation list not on the basis of continuous service in the
equated grade but on the basis of length of total service including
service in the lower grades. The State Government was therefore directed to prepare an alternative gradation list on the basis
of the conventional formula of continuous service in the equated
grade subject to maintenanee of imer se seniority.
The State
Governme_nt complied with this direction.
In their letter dated
September 16, 1961 the Centr_al Government said that t1'e procedure adopted by the State Government for determining inter se
seniority on the basis of length of total service in gazetted posts
could not be approved.
On the contrary, the decision of the
Central Government was that int.er se seniority should be determined on the basis of continuous length of service, whether in a temporary or permanent capacity in the equated grade, and the second
list prepared by the State Government on that basis was approved
subject to two modifications, (i) The ranking of t.'J.e officers from
Bhopal region (Serial Nos. 60 tu 70) should be re-arranged as per
rankings given by the Union Public Service Commission. (ii) In
the case of officers from Mahakoshal region ( Ser:al Nos. 59 onwards) it was pointed out that the then S.tate of Madhya Pradesh
had not passed orders fixing the ranking of the said officers and
hence the ranking sholild be done by the State Government keeping in view the normal rule of fixing ranks with reference to date
of appointment on a substantive vacancy, whether on probation or
as confirmed officer.
It was further directed that as the rearrangement as per modifications suggested was likely to affect the
ranks of officers of other regions the entire list should be reviewed
in the light of directions given by the Central Government.
On
this direction of the Central Government, the inter se seniority of
the officers ofMahakoshal region was refixed by the State Government by its letter No. 1086/6216/XIX/E dated February 20,
1962. In the light of this list the provisional gradation list was
also reviseq.
~s already directed by the Central Government in
its letter dated November 11, 1959, the State Government published the final gradation list with the preamble attached to it stating
that the final list was being published by the Goven:ior in exercise
of powers conferred by the proviso to Art. 309 of the Constitution
and in accordance with the decisions of the Government vf India
under the provisions of s. 115(5) oL the said Act.
The final
gradation list was published by the State Government on April 6,
1962.
The respondents thereafter moved the High Court of Madhya
Pradesh for grant of a writ under Art. 226 of the Constitution. The
validity of the final gradation list was challenged on the ground
that it was not made in accordance with the_ provisions of s. 115 ( 5)
SUPREME <;OURT REPORTS
[1968) 2 S.C.R.
·of Lh<'. said Act but in contrav.ention of that provision.
It was also
alleged ihat in so f<tr as th" State Qoven1ment, in drawing up the
final gradation Jg;_t, follo'ijed a principle different from 1 the one
followed in prcpa,rjng'thc.provj>ional gradation list on the basis of
w)lich representatiop~ were. invitecl; the State G9vemment i)ad in
" ·effect denied the right of representation tp the •. p,ersons. aifected
thereby.
The writ petition v..;as allowed by th,e High Court_.which
·quashed the notification dated April 6, 1962 (Annextrre 1 to the
writ petition) publishing the final grad.ation. list of the establish·
.ment of "Buildings, Roads and Irrigation" in the P,ublic Works
Department and fur.ther directed the Central Government "to
con~plete the work of the integration of the services in the iJfor~aid
Department in conformity wit!\ the .provisiqns of sub-s .. ( 5)
of
s. Vi 5 of the States Reorganisation Act, 19.56"
.
~
Th·e first question tp ;be c9nsidcred in this ap~al is whether the
High Court wus right in taking the view tliat ihe work o(.integra1ion was exclusively entrusted to the Central Governnien.t by
s. I J.5 ( ,5J of.tlip.,said A.ct_ and tbat the final gradation list p~1{1ished
,Qn ~pnl (). 1962 was illegal ,and· ultra virer as the delega:t19n of
iLs powers an,d d.utics by the Centr<tl Government tq the State Gpv-
.ernment in r~gard to integration was noi in accordance with law.
Under· A re'.' \ 62 of the Constitution it is provided as follows :
.. ·162'. ·Subject to the provisions of this Constitution,
"the executive power of a State shall extend to the.
matters with respect to which the Legislature of the State
'has power to make Jaws : ..
. Pr~vided that ip. any matt~r wiih respect to whicli the
Legislature of a State and. J>arliaipent lj,ave power to
make laws, the exe'cμtive power qf,the State shall be sub-
. jec,t to .. and }imited,.by, lhe' e,xecμtive power expressly
•conferred by)J:iis Constitution . or by any law made by
Parlia!T1ent upop the Union q~ ·autl)orities thereof."
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·As regards the matters ill respect of which the Legislature of a
State has the pow'er to •make Jaws, item 42 iri List II of the
Seven}h Schedule to the Constitution speeifies "State Public· Ser· . G
vices", and under the provisions of Art. 162, the executive power
·of the State extends to• Spte Public Services: 'This power is, haw-
·cver, subject. 10 the other provisions pf the Constitution. Article
'J09' states :
,,,
''Subject to.,thc provisions of Jhis Constitution., Ac~
of the appropriate Legislature 11,rny regulate the recruitment. and c.011di.tions of service.1of P<;rsons appointed, to
<
public services <1nd -posts in conpection with tlje affairs
<Of the Union or of any State :,
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Provided that it shall be competent for the President
or snch person as he may direct in the case of :IBrvices
and posls in connection with the affairs of the Union,
and for the Governor of a State or such person as he may
direct in the case of services and posls in connection with
the affairs of the State, to make rules regulating the recruionent, and the conditions of service of persons appo'inted, to such services and posts until provision in that
behalf is made by or under ~.n Act of the appropriate
Le:gislature under this article, and any rules so made
shall have effect subject to the provisions of any such
Act."
Under this Article, the Governor of a State is empowered in the
case of services and posls in connection with the affairs of the
State, to make rules regulating t11e recruitment and conditions of
service of persons appointed to such services and posls until provision in that behalf is made by or under an Act of an appropriate
Legislature. Article 2 of the Constitution enacts that Parliament
may by law admit into the Union or establish, new States on such
terms and conditions as it thinks fit. Article 3 of the Constitntion
states that 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 boun<laries of any State; (e) alter the name
of any State.
Article 4 provides as follows :
" ( 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 Par-
,
liament 111ay deem necessary.
·
,,
By· virtue of the power 'lllder Art.- 4 the. said Act \YaS enacted. On
behalf of the appellanls the Solicitor-General put forward the argument that the power of integration is not e.xclusively conferred
upon the Central Government under s. 115(5) of the said Act.but
the power of the State Government in the matter of integration ·
under Art. 162 read with Entry 42, List II remains unaffected
except to the extent that the State Government must carry out the
directions of Central Government in the matter of integration. The
opposite view-point was presented by Mr. Asoke Sen on behalf of
the respondents.
It was contended 'hat under s. 115(5) of the
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saiJ Act the Central Government was g:1en, by necessary implicallon, the exclusive power to integrate and the word "allotment" in
s. 115 ( 3) & ( 4) carries with it the necessary power of fusion and
intei,'Tation.
We do not propose. for the purpose of the present
case, to decide which of these view-points as to the interpretation
of s. 115(3), s. 115(4) ands. 115(5) of the said Act is correct.
We shall assume in favour of the respondents that s. 115(3),
s. 115(4) ands. 115(5) read together confer exclusive power on
the Central Government in regard to integration. Even on that
assumption we do not agree with the finding of the High Court
that there was improper delegation of its statutory powers and
duties by the Central Government. that there has been a violation
of the provisions of s. 115 ( 5) of the said Act or that the final
gradation list published by the notification dated April 6, 1962
is illegal and 11/tra vires.
Generally speaking, the work of integration requires the formulation of principles on which the work has to be carried out,
the actu"I preparation of preliminary gradation lists in accordance
with the principles so settled, the publication of the list~ together
with the principles upon which they have been compiled, the invitation of representations by the persons affect¢ thereby, the
consideration of representations and decisions upon those representations, and the publication of the final gradation list incorporating the decisions of the Central Government on the representations submitted.
In the present case, there is no dispute that the
Central Government laid down in their letter dated April 3, 1957
the principles with regard to the equation of po~s and determination of relative seniority as between two persons holding posts declared equivalent to each other and drawn from different
States.
It also appears that the Central Government appointed
two ad\lisory
committees for dealing with representations
from the service personnel affected by the reorganisation.
As
directed by the Central Government in their letter dated
April 3,
1957, the State Government also appointed two
committees for the purpose connected with integration. Thereafter, the State Government prepared a provisional list fixing the
i111er se seniority of officers who had come into the cadre from
different regions.
The list wa~ published and it w::.~ notified that
·any Government servant feeling aggrieved by the provisional list
was entitled to send his representation to. the Central Government.
The principle ur-:in whic~ the IL~t was prepared was published and
it was notified that the principle was subject to. any sub.~quent
· moJification at the direction of the Central Government. Representations were thereafter received from officers including respondents I to 4. 6 & 7.
The representations were sent to the Central
Government to he dealt with in consultation with the advisory
committees that were constituted.
On a consideration of these
representations the Central Government directd the State GovB
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ernment to forward the alternative list prepared on the basis of
the conventional formula laid down by the Central Government.
As already observed, the State Government had proposed that
seniority should be fixed on·the basis of continuous service including that in the lower grade, but the Central Government had directed that continuous service in the equated grade alone should be
taken into account for fixing the seniority subject only to the
maintenance of inter se seniority of the officers coming from several integrating regions.
The Government of India therefore directed that revised list should be prepared on the basis of this formula.
Accordingly, the State Government sent a second list prepared 9n
the basis of the conventional formula, viz., continuous service in
the equated gr~ le subject to maintenance of inter se seniority.
The Central Government thereafter in consultation with the
advisory committee examined both the lists and after taking
into account the representations made, conveyed
to
the State
Government its decision by its memorandum dated September 16,
1961 with regard to the preparation of the final gradation list.
The decision thus communicated may be summarised as follows :
( 1) Inter se seniority should be detennined only on the basis of
continuous length of service, whether in a temporary or permanent
capacity in the equated grade, (2) the second gradation list prepared according to this principle and forwarded to ,the Central
Government was approved subject to certai'l modifications in the
equations and the changes proposed in accordance with. the decisions on the individual representations.
As
regards inter se
seniority of the Mahakoshal officers,
the Central Government
stated in paras 9 & 10 of the letter :
"9. In respect of the Mahakoshal officers
shown
from serial No. 59 onwards it is seen that no formal
orders were issued by the Madhya Pradesh Government
prior to 31st October, 1956 fixing the rank of each
officers.
While approving the notification confinning
an officer, it was customary in old Madhya Pradesh to
issue order regarding the rank which he would obtain in
the seniority list.
In respect of the confirmation orders
issued during October, 1956, it appears that no such
orders were issued. If the present ranks in the Combined Gradation List were to be accepted, it would mean
that some of the officers who were not selected by the
Public Service Commission of the old Madhya Pradesh
for permanent posts would be senior to those selected
and placed on probation as early as 1953.
The nonnal
practice adopted in such cases would appear to be to
arrange the names of the officers in the order of appointment to a substantive vacancy whether on pr0bation or as a confirmed officer.
In respect of officers
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appointed to substantive vacancies with effect from the
~ame date, the normal practice was to arrange the names
on the ba1is of length of continuous service.
Where a
departure from this principle wa1 intended. specific
orders were issued or the names arranged in t.he desired
sequence in the confirmation orders itself.
I 0. A re-arrangement of the names of the Bhopal
and Mahakaushal officers in the manner indicated abov<'
is a matter concerning the respective parent State seniority lists.
However, a re-arrangement of the names of
these officers would have repercussions on the ranh of
officers from other regions. It is, therefore, suggested
that tho entiro matter may be reviewed by the State
Government in the light of the position stated in the two
pm:eding paragraphs and the necessary changes carried
out in the Combined Gradation List."
In accordance with this direction .r.he State Government prcparc-tl
the inter se seniority list of Mahakoshal officers (Annexure R-.14)
dated February 20, 1962.
On the basi.1 of this list the final gra·
dation list was prepared by the State Government and published
on April 6, 1962.
In our opinion, the procedure adopted in this case docs not
contravene the provisions of s. 115 ( 5) of the said Act. because
it was the Central Government which laid down the principle:-. tor
integration. it was the Central Goverrunent which corlsideroo the
representations and pa1scd fin;,! orders, and both the preliminary
and final gradation lists were prepared and published by the State
Government under the direction and with the sanction of the Ceutral Go,·ernment.
It is manifest that there has been no delegation by the Central Government of any of its essential function'
entrusted to it under the statute.
It wa1 pointed out by Mr.
Asoke Sen that in its letter dated April 3, 1957 the Central Government had intimated that the work of integration should be left
to the State Government.
But what was meant by that icttcr
was that only the preliminary work of preparation of the gradaA
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tion list1 on the principles decided upon by the Central Government should be left to the State Governments concerned. It b· - G
clear that such work cannot be done by the Central Governn :nt
itself since the necessary information regarding the officers can be
obtained. and tabulated only by the States concerned.
It
wa.'
also pointed out by Mr. Asolce Sen tbat the preparation of the prnvisional and the iinal gradation lists by State Government constituted a delegation by the Central Government.
We do not think
there is any substance in this argument.
It is not disputod that
the provisional and the final gradation lists were prepared by th~
State Government on the principles laid down
by the
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Government itself subject to one change in the matter of determining seniority and the provisional gradation list was sent for approval of the Central Government together with representations made
by the officers concerned for being dealt with and decided upon
by the Central Government.
The priilciple of the maxim "dele-
. ga111s. non palest de/egare" has therefme no application to th.:
present case.
The maxim deals with the extent to which a statutory authority rnay permit another to exercise a
discretion entrusted by the statute to itself.
It is true that delegation in its
~eneral sense does not imply a parting with statutory powers ry
the authority which grants the delegation, but points rather to the·
conferring of an authority to do things which otherwise that administrative authority would have to do for itself; If, however, the
administrative authority named in the statute has and retains in
its hands general control over the activities of the person to whom
it has entrusted in part the exercise of its statutory power and the
control exercised by the administrative authority is of a substantial degree, there is in the eye of law no "dele~ation" at all and the
maxim "de/egatus non palest de/egare"' does not apply [See Fowler
(John) & Co. (Leeds) v. Duncan](').
In other words, if a sta•·
tutory authority empowers a delegate to undertake preparatory
work and to take an initial decision in matters entrusted to it but
ietaim· in its own hands the power to approve or disapprove the
de<::ision after it has been taken, the decision will be held to have
been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authority's own.
In the context of the facts found in the present case·
we are of opinion that the High Court was in error in holding that
there ha' been an improper delegation of its statutory powers and
duties by the Central Government and that the final gradation list
dated April 6, 1962 was therefore ultra vires and illegal.
Even
on the assumption that the ta<;k of integration was exclusively entrusted to the Central Government. we arc of the opinion that the
steps taken by the Central Government in the present case in the·
matter of integration did not amount to any delegatipn of its essential statutory functions.
There is nothing in ss. 115 or 117 of
the said Act which prohibits the Central Government in any way
from taking the aid and assistance of the State Government inthe matter of effecting the integration of the service.,.
So long as
the act of ultimate integration is done with the sanction and appro-.
val of the Central Government and so long as the Centr.al Government exercises general control over the activities of the State
Government in the matter. it cannot be t.eld that there has been
any violation of the principle "de/egatus non palest de/egare". For·
instance, it was observed by this Court in Pradvat Kumar Bose v.
The Hon'b/e The Chief Justice of Calcutta High Court(') :
(I) [!941] Ch. 450.
(2) [1955] 2 S.C.R. 1331, 1345:
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"It is well-recognised that a staulory functionary
exercising such a poy;cr cannot be ,;aid to have delegated
his functions merely by deputing a responsible and compelcnl ofticial 10 cnyuire and report.
That is the ordinary mode of exercise of any administrative power. What
car,ol be cklcgatcd except where the law >pecifically "°
provides-is the ultimate responsibility for the exercise
of such power:·
As pointed out by the House of Lords in Board of Education v.
Rice('), a functionary who has to decide an administrative matter.
of the nature involved in this case, can obtain the material on which
he is to act in such manner as may be feasible and convenient,
provided only the affected party "has a fair opp0rtunity to correct
or contradict any relevant and prejudicial material".
The same
principle was reiterated by Lord Chancellor in Local Gorernmcnt
Board v. Arlhif~e( ') in the following passage:
"My Lords. 1 concur in this view of the position of
an administrative body to which the decision of a question in dispute between parties has been entrusted.