# ff C. P. DAMODARAN NAYAR AND P. S. MENON v. STATE OF KERALA AND OTHERS

- **Citation:** [1974] 2 S.C.R. 867
- **Court:** Supreme Court of India
- **Decided:** 1973-12-20
- **Case number:** Civil Appeals Nos. 2629 & 2630 of 1969
- **Bench:** P. Jaganmoh, An Reddy, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ff-c-p-damodaran-nayar-and-p-s-menon-v-state-of-kerala-and-others-6206
- **Pages:** 12

## Headnote

867
States Reorganisation Act, 1956, Ss. 115 !lnd
117-Madras State judicial
Service Rules, 1953; r. 11-Appl{cabiliry !o officers allotted to Kera{a-Seniurity
according to decision of Central Govcrn111e11t-Right of :staff Government. to
co11stitute new cadres-'KLM' principle and its scope.
.
Under s. 115(5) of the States Reorganisation Act, 1956, the Central Government may·establish one or more Advisory Committees·for the purpose of assisting
it in regard- to, (a) the division and integration .of services among the new States,
·-and (b} the ensuring of fair and equitable treatment to all persons affected.
Under s. 177 the Centrar Government may give stich d.irections to any such State
Government as may appear to be necessary for the- purpose of giving effect to the
provisions of the Act and the State Government shall comply with suc_h directions.
Accordingly, a meeting of the Chief Secretaries of the various States that ·were to
·be effected by the reorganis.ation was held in May, 1956, at the-invitation of the
Central Government, and certain dec1s1ons were taken as to the general principles
that should be observed with regard to the integration work
The Central Gov-
.ernment thereafter informed the State Governments that they had decided that the
-Wllrk of integration of services, equation ot' Posts and relative seniority should he
dealt with by the State Governments in the Ught of those general principles. In
1962, the Central Government, after considering the representatious of t"!\e Officers
-made under s. 115(5) of the· Act; in modificatton'of the .earlier pri,1ciplc· excluding
pe_riods for which an appointment is held as:.a purelyi!)top __ g~p qr. _foi:tttltous
arrangement in fixing seniority, decided that the officers allocated to Kerala State
from the former Madras State may be allowed benefit of emergency servi~,. f!J·
wards seniority in the equated category if such service would have been re8ulans..
ed from the date of their emergency appointment and counted for seniority in
Madras, on Ist November, 1956, had those officers~remained in Madras. The
respondent-State acceptr-d this decision of th£ Central Government.
The appellant was selected as a District Munsiff by the Madras Public Service
Commission and was posted as such on May 26. 1951. and he has been in con•
tinuous service since then.
Consequent upon a decision of the Supreme Court of
Jndia, the Madras State Judicial Service Rules (Madras Rules) were framed in
1953, but were given retrospective effect from March 1951, and the service of the
appeUant and~ others was regularised as from October 6,
1951. The State of
Kerala came into being on November 1, 1956, and the appellant Was finally allotted
Kerala with effect from October 24, 1956. On March 26, 1966, the respondentState published the final integrated list of the Travancore-Cochin and Madras
personnel of the Judicial Officers as on November 1, 1956, showing respondents
6 and 7, whose dates of commencement of continuous service were July 20, 1951,
and October 1. 1951, respectively, as senior to the appellant, on the basis that
October 6, 1951, was assigned to him as the date of commencement of his continous service being the date of his appointment to the post i11 the equated category as on November 1, 1956. The respondent-State, on October 20, 1959, also
provided that some posts of District and Sub--divisional Magistrate of 'executive
ori_gin' ~·o~]d be constit~ted as a separate service outside the civil judiciary, while
being eh,g1ble for appointment as subordinale judgos and MunSiffs respectively.
'The appellant filed a writ petition in the High Court questioning inter aUa ( 1) the
rank and place of seniority given to him in the final Jist on the gronnd that. the
date of commencemen1 of his continuous service is May 26, 1951; and (2) the
or~t:r of the respondent-State providing a special cadre for magistrates of executive
or1g1n, ·on th~ ground that, if that order was implemented there was the likelihood

## Text

8
E
F
G
ff
C. P. DAMODARAN NAYAR AND P. S. MENON
v.
STATE OF KERALA AND OTHERS
December 20, 1973
[P. JAGANMOH,AN REDDY AND P. K. GOSWAMI, JJ.]
867
States Reorganisation Act, 1956, Ss. 115 !lnd
117-Madras State judicial
Service Rules, 1953; r. 11-Appl{cabiliry !o officers allotted to Kera{a-Seniurity
according to decision of Central Govcrn111e11t-Right of :staff Government. to
co11stitute new cadres-'KLM' principle and its scope.
.
Under s. 115(5) of the States Reorganisation Act, 1956, the Central Government may·establish one or more Advisory Committees·for the purpose of assisting
it in regard- to, (a) the division and integration .of services among the new States,
·-and (b} the ensuring of fair and equitable treatment to all persons affected.
Under s. 177 the Centrar Government may give stich d.irections to any such State
Government as may appear to be necessary for the- purpose of giving effect to the
provisions of the Act and the State Government shall comply with suc_h directions.
Accordingly, a meeting of the Chief Secretaries of the various States that ·were to
·be effected by the reorganis.ation was held in May, 1956, at the-invitation of the
Central Government, and certain dec1s1ons were taken as to the general principles
that should be observed with regard to the integration work
The Central Gov-
.ernment thereafter informed the State Governments that they had decided that the
-Wllrk of integration of services, equation ot' Posts and relative seniority should he
dealt with by the State Governments in the Ught of those general principles. In
1962, the Central Government, after considering the representatious of t"!\e Officers
-made under s. 115(5) of the· Act; in modificatton'of the .earlier pri,1ciplc· excluding
pe_riods for which an appointment is held as:.a purelyi!)top __ g~p qr. _foi:tttltous
arrangement in fixing seniority, decided that the officers allocated to Kerala State
from the former Madras State may be allowed benefit of emergency servi~,. f!J·
wards seniority in the equated category if such service would have been re8ulans..
ed from the date of their emergency appointment and counted for seniority in
Madras, on Ist November, 1956, had those officers~remained in Madras. The
respondent-State acceptr-d this decision of th£ Central Government.
The appellant was selected as a District Munsiff by the Madras Public Service
Commission and was posted as such on May 26. 1951. and he has been in con•
tinuous service since then.
Consequent upon a decision of the Supreme Court of
Jndia, the Madras State Judicial Service Rules (Madras Rules) were framed in
1953, but were given retrospective effect from March 1951, and the service of the
appeUant and~ others was regularised as from October 6,
1951. The State of
Kerala came into being on November 1, 1956, and the appellant Was finally allotted
Kerala with effect from October 24, 1956. On March 26, 1966, the respondentState published the final integrated list of the Travancore-Cochin and Madras
personnel of the Judicial Officers as on November 1, 1956, showing respondents
6 and 7, whose dates of commencement of continuous service were July 20, 1951,
and October 1. 1951, respectively, as senior to the appellant, on the basis that
October 6, 1951, was assigned to him as the date of commencement of his continous service being the date of his appointment to the post i11 the equated category as on November 1, 1956. The respondent-State, on October 20, 1959, also
provided that some posts of District and Sub--divisional Magistrate of 'executive
ori_gin' ~·o~]d be constit~ted as a separate service outside the civil judiciary, while
being eh,g1ble for appointment as subordinale judgos and MunSiffs respectively.
'The appellant filed a writ petition in the High Court questioning inter aUa ( 1) the
rank and place of seniority given to him in the final Jist on the gronnd that. the
date of commencemen1 of his continuous service is May 26, 1951; and (2) the
or~t:r of the respondent-State providing a special cadre for magistrates of executive
or1g1n, ·on th~ ground that, if that order was implemented there was the likelihood
.of su~ivisional Magistrates securing promotion over munsiffs with-longer service.
The High Court dismissed the petition.
·
'
868
SUPREME COURT REPORTS
(1974] 2 s.c.R.
In appeal to this Court,
A
HEW : ! I) (a) Rule 11 of the M;adras Rules deals with temporary appoint·
nients. But it 1s not at all relevant for the purpose of fixing the seniority of the
~~ppellant. It is inapplicable to the appellant after his final allotment to the State
vf .Kerala and after the al.ear decision of the Government of India allowing the
t'-tnefit of emergency Service in regard to seniority, which was aci;epted by the·
Kerala Government. [875 H]
( b) Assuming that. the rule and the earlier decision of the Government of
India in confirmity with the agreement with (he Chief Secretaries referring· to
B
pllrely stop.gap or fortuitous irrangements may be iff•oked, they are inapplicable·
to the appellant, because, it cannot be held that the appellant's service is either
tilled 'owing to an emergency' or that it was held as a 'purely stop-gap or fortuitous
;1rran~ement.' The appellant had been appointed in a regular manner through the
Pt.1blic Service Commissian and his appointment could not have been made as a
'purely stop-s:ap or fortuitous' one. The Government of India had also acCcpted
tl:).e position tltat an allotted employee should not suffer any disadvantage if he
."OQl\I not..llave been subJe~ted to ~like haudicap in his parent State. The cones··
Ci:
portdertce lietween the Madras and Kerala Governments after the Central Govern·
ment communicated its decision that tho allocated officers should be allowed thebenefit of emergency service. in regard to seniority, showed that the position in·
~1adras State was that continuous service of the officer, whether regular, temp().
rary or emergency, would have been tak,en into ac:count for the purpose of seniQrity. The appellant had been in continuous service from May 26, 1951. There-·
tore, the conclusion is irresistible, that the appellant was entitled to the assignment
of May 26, 1951, for the purpose of senionty, and tho appellant in the connected
appeal, would be entitled to the assignment of February 12, 1955. [876 C-0]
D
(1) There is no force in the contention reprding the reservation of tho see•-
J'ate cadre for the District Magistrate ·and sub-divisional Magistrates of executive
origin. It is open to the State· Government to_ constitute as many cadres as' they
choose according to administr~tive conyeμience and expediency.
[876 H1
· (3) As regards tho appellant in the connected appeal he would not be entitled
to an earlier date as the date <>f contlnuQUs lllPOlntment on the pound thal Ill
otli~r junior to him who was provisionally allotted to the State of Kerala along
E
\Vith him at the initial stage when the new State was constituted was asaiped
1-7..:1954 as his date of continuous service; because; the 'KLM principle' was not
applicable to that appellant. According to .the principle-the senionty ef tbC.
Travancore•personnel· &S':betweCn thc~lves, or of tho O>chin
~rsonnel_, u
htween .tbemsclY,a _could·. not di!tur~ .while detemiining the relative seniority
.o( !he TravanCore aiid COchin pcnonnel ·"in any class. But the officer who Was
JU!Ubr 10 :tbC appell~t had' ari'anged fOr a m~tual transfer with an officer from
Madrns and could not.be held to be In service m Kerala for the purpose of the
final ·integrated· list. · The_ question. of int tr se seniority cannot ansc when there is
F
nothing to .-fix such inttr se seniority of the appellant vis-apvis his junior. Th«e·
fOfe the" benefit of the principle canitot-.be claimed by
the
appellant. [877C;
R78B]
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2629
&
2630 of 1969.
From the judgment and order dated the 2nd April, 1969 of the
G
Kerala High Court at Ernakulam in Original Petition Nos. 27<Yi and
2708 of 1966, and
Civil Appeal Nos. 304 & 305 of 1972.
Appeals by special leave fron:i the judgm.ent 3!'~ order .<1!1ted the
2nd April, 1969. of the Kerala High Court m Ongmal Petition ,Nos.
2708 of 1966 and.
Sardar Bahadt.ir, and C. P. Damodaran Nayar, appellant appeared
in person, (in C.Af. 2629 /69 & 305 /72).
A
B
c
D
E
F
G
H
:DAMODARAN v. KERA~A (Goswami, I.)
869
K. T. Harindra Nath and Vishnu Bahadur Saharya, for the appel·
!ant (in C.A. 2630/69).
V. A. Seiyid Mohmu,d and K. C. Dua, for respondent Nos. 1 .&
4. (in C.A. 2629/69 and respondent Nos. 1 &.3 (in C.A. 2630/69).
Gobind Dos and S. P. Nayar, for respondent No. 2 (in C.As.
26.29 and 2630).
A. V. Rangam and A. Subhoshini,. for respondent No. 3 (in C.A.
2629/69).
P. C. Chandi, for respondent No. 3 (in C.A. 304/72) and rea·
pondents Nos. 1 & 4 (in C.A. 305/72).
K. M. K. Nair, for respondent No. 5 (in C.A.A. 2629/69)
S. Gopalakrishnan, for respondent Nos. 6&7 (in C.A. 2629/
69).
The Judgment of the Court was delivered by
GOSWAMI, J. These appeals by certificate are directed apinst
the judgmene of the Kerala High C?urt in several writ applicatiom
filed there challenging the final integration list of judicial oflicen
allotted to Kerala State under the States Reorganisation Act, 1956,
briefly the Act. The appellant in Civil Appeal .No. 2629. of 1969,
which we will take first, was a practising Advocate. He was recl"lllt·
cd along w.ith 82 others by the Madras Public Service Commissi911,
briefly the Commission, and was temporarily appointed as a District
Munsiff by the Madras Government on November 25, 1950. Thia
appointment was under rule 7A of·.the Madras State Judicial Scrvkc
'Rules, then in force. The Madras High Court posted him for ~·
iDg which commenced on January Hi, 1951 and while undergoing
..
!raining he was posted as District Munsiff at Calic•1t where he toOli;
dlarge of this post on May 26, 1951. Since the,. he has been in
cpntinuaus service as Munsiff, s_ubotdinate Judge, District Magistrate
end as District Judge.. One B. Venkataramans, who had not been
9'11ected as District Munsiff. along with. the appe. lla.n~ '.Ind _others in
t<J50, challenged the selection made bY the Colll1!l1Ss1on 10 a writ
)ictition before this Court. This Court allowed th<i.:Pf:tition and the
4eQ.ion is reported in V. Venkataramana v. Tiie .:State of Madras
· 4 Anolher.(1)
This Court held that the Communal 0.0. of ihe
Madras Government which besides making reservation of post& for
Harijans and backward Hindus, as sanctioned by cl: ( 4) of Art. 16, ·
also made reservation of posts for other communities viz. Muslillls,
Otristians, Non-Brahmin Hindus and Bralmnins was repugnant to
the provisions of Art. 16 and was as such void and illegal. Tiie
Court, however, did not cancel all the appointments made during the
year but directed the Government to consider and dispose of the
application of Venkatarantana on its--merits and without applying the
J')lle of communal rotation. It may be mentioned that the appellants
here and other successful candidates were not joined as respondents
ill the said ivrit petition before this Court. Venkataramana
was
(l)AJ.R. t9SI: ; :!.'.
SUPREME. COURT. REPOJt1"S
:(1974) 2 s.e.tt.
accorclingly selected and. appointed as District Munsilf and .. b~ took
charge of his office on October 6, 1951.
Consequent upon the
decision in that case the Madras State Judicial Service Rules (briefty
the Madras Rules) were framed on October 6, 195:l under Article
234 read with Article 309 of the Constitution. These Rules came
into effect retrospectively from March 22, 1951. It is averred that
appointment of the appellant is thus under rule 11(2) of the.Madras·
RUies.
On November 2, }953, the Madras Government
directed
. B
that the services of the .appellant along with other candidares be
regularised w .e.f. October 6, 1951, the same
date· from
which
Venkataramana's appointment has been so done
(vide Ext. P-7).
It is also mentioned in this order that the 82 officers mentioned in
the schedule to the order including Venkataramana (serial No. 27)
and the appellant (serial No. 72) will commence probation from that
date.
The Government, however, sanctioned increment in the time
•cale to the appellant and the other District Munsiffs appoinred in
1950 and 1951 from the dare of commencement
of continuous
service (vi de Ext. P-6) . Consequent upon the passing of the States
.Reorganisation Act on August 31, 1956, 51 judicial officers including the appellant belonging to different cadres like District Judge,
District Magistrate, Sub-Judge, Munsiff and
Sub-Magistrare
were
transferred from the Madr'l,'! State to the Kerala State on September
11, 1956. The appellant was finally allotted to Kerala w .e.f. October 24, 1956, as per order of the Government of India dared Augwt
2~, 1960, under the Act.
The State of Kerala was brought into
being w.e.f. November l, 1956.
We may note here that the new
I<:erala State was formed under section 8 of the Act comprising the
territories of the existing Stare of Travancore-Cochin, excluding the
territories transferred to the State of Madras ·by section 4; and
the territories comprised in Malabar district, excluding the islands
of '[,accadive and Minicoy and Kasaragod taluk of South Kanar•
district.
The Government of Ker ala passed an order (Ext. P-16) regan!,
ing reorganisation of judicial services.
Afrer the reorganisation ·of
States, principles were evolved and formulated by the Centrl!I Go~
ernment at the c0nference of Chief Secretaries of the different States
regarding integration of services.
The Kerala Government frruned.
pri)lciples and procedures · regarding integration of . services of
Travancore-Cochin personnel with the personnel allotted from Madras
(vide Ext. P-13). The Madras Govermnent ·also framed general
principles for integration of services by their order dated July 17,
1957 (vide Ext. P-14). The Government of Kerala issued ordefi.
regarding equation of posts in the Judicial Department for the purpose of integration of services on May 27, 1958 (vide Ext. P-17).
The equation was as follows :
"Travancore-Cochin
(i) District Judire-I GradeDistrict. Judges-II
Grade-Rs.
c
D
E
F
G
Rs. 800----1000.
1000-1800.
H
District & Sessions Judge, District Magistrate
(Judl.l~
II Grade-Rs. 500-800. Grade-500-700 plus Spl. pay
Rs. 50/-.
llAMOOARAN V; KERALA (GoswaniJ, }.)
811
(iii) District Magistrate ·
Su~ JJ!ilges .on-Rs. 55<h7()().
~
Rs. 5()()-:.800 ..
Addi; District and Sessio~
Jud~ arid . Sub-Judges
Grade-Rs.. 45().-.®Q ••
B
(iv-) Sub Divisional Magisttaies. Qisfrict Munsiff and Sub-Di.vi·
.
.·
.
.
. si<inal Magistrate Rs.)00-,700.
l Grade--,Rs. 450-600.
.
.
Munsiffs ·and Sub-Division'!l Magistrate
Grade _n Oll-Rs. 25():..c:;SOO.
(v) Sub Magistrate
Sub Magistrates
Rs. 200-300.
Rs. 200-.300."
c
Th. e ~Hant preferred .an appeaf against this . ord.er through .th· e
Kerala High Court and .the Government· of Kera!a to the . Adv!sqzy
Colllmittce .c.onstitntcd by the ·Central Government under secti11n
115(5) 11f the Act challenging among other thing'! that the principles
evolved for the equation of posts were illegal and unjust. Meanwmle
0
the <l<lrieroment of Kerala -00 September 24, 1959, ordered th~ it
would not .be .proper to equate the District Magistrates and lhe
Sub-Di.visional Magistr~ · of. Grades. I and. II of 'ex~utive ~·
belonong to the erstwhile Travancore-Cochin State with the Civil
Judicial Officers and that the same should be kept separate until lhe
Magisterial Ollii:ers were indilced into the Civil Judiciary in . the
iilaoner. preteribed under Article 234 . of . the •Constitution; By . the
I!
~'1:1J1e oider'it was provided that the lhree posts of the District Mligistr:Uef<. (actua11y four since one was omitted· through mistake)
Bild
Ci~: P<ists,, of .Spl?--Divisional Magistrates of .the Tr":vancore-O>cb!!t·
area · would be constituted as a separate semce outside
the CiYJI
Judiciary iio as· to enable the incumbents to continue in their poats
{vide Ext. P-21 );
On the same date; the Government of Kerala
·passed an order under Article 234 of the Constitution by which the
:r
salaried Magisterial Officers of the former Travaocore-Cochin S\ate
in ·. lhe ca!t'SQries of District Muosiffs and Sub-Divisional Ma$istrlltes
~
made· eligible for appointment to the categories of Subordinate
,)"ljlfge_s and
0 Munsift's respectively (vide Ext. P-27). The appellant
preferred an appeal B!lllinst the order (Ext. P-21) on October 20,
1959 (vide ·J3it. P·22). He pointed out that if the afores;iid order
(Ext. P-21) WJS implemented there was likelihood of
the SubG
Divisioo;il Magistrates who had got far less service than that of tho
Munsiffs 5ecurin!J promotion over such Muosiffs. The Kerala Government passed a finiil order regarding the equation of posts in the
judiciary on July 24, 1961 (vide Ext. P-23) and informed. the.
appellant that the appeals had been rejected by the Government of
Isldia.
The Government of Kerala published the preliminary integial~ list c( Judicial Oflicers on April 24, 1962 (vide Ext. P-24~.
H
1'h!l appellant preferred an appeal _against this list (vid!' Ext. P-2S).
· OUiet officers also filed representations and appeals agamst th.e same' .
In .die preJimioa.ry integrated gradation-list of the Travancore-Cochin
and Madras personnel as on November 1, 1956, the appellant 'llllll
812,,
SllPll.EME COURT 11.EPOll.TS ·
J1974) 2 S.C.ll.
I
shown,agW:ist serial.NC>: 44 and his date of commen=ent of ~i>ntiA
nuoas sernce as well as the date of appointment to the post of
equated category was shown as May 26, 1951. Respondents 6 and
? were . shown ~low him against seritJ ·Nos. 46 and 4 7 respectively
m the list. Thell" dates of co=encement .of continuous. service are
July 20, 1951 and October 1, 1951 respectively and the same are
the. ,dates of aJ'pointment to the post of equated category in. the list.
After publication of the preliminary integrated list, the Government
B
of_Kerala issiied twq orders on. May 16, 1962 an<I May 10, 1963
(vide Exts. R-1 and R-2)
respectively. R-2 has superseded the
earlier order R-1 and some other orders. We may quote the relevant
portion of the order in Ext. R-2 which rans as follows :-
''The ·Government of India have consider "'1 the representations of
C
the. officers and have decided as follows :-
. (i) The ollicm allotted to Kerala from Madras may
-· be allowed the benefit of emergency service ~owartb
seniority in the equated category ~ · such service
. would h;..:e beeii regclarised from the -date of their .
· tmergency .appointment and Counted for inter-state
P
-seniority in integration in Madras on 1-U-1956 'ha\!
Ibey remained in Madras.
·
.,;ic
x
:x
-~"
'Jl:lll . ~
of the Government of India was
acccp'.ed by !he
I\'.
~a
Government: On the s:.bje<:t of taking into account ~
.cinCrgcncy, .si:rvioe there was correspondence .betwee.n ilie Ccn:nl
~riw:>enflind the> GOvemm:!lt of Kerala (vide E..-t. P·32 · ~
~
1, 1962}. 0n· the same ~1:J:s:3ua there were twp kucn
fldm lhe Gov.cmment -0f Madras.
to .the ·Kcrata Ge>vcrnme:xit
!~ E1.\s. p.34 -dated .July ZJ, 1963 and P-35 dated Ncm:mbcr 7.
t!l.6l) ,to ~ Seerctary, Allotted Ayricultural .om=· Associalioo.
~
C;Wcut.
Th~ JCerala .Qovernmellt "'°'" on F~bruaiy ll, 1966, fra.llled
cctlain .ad-boc:' rules (vide Ext. P-28) for absorplion ,of -CriI:l.illal :lid:
Illdicial Officers of the Travancore<oc:hin Brimch who were . ke.;:t
i11 ·.a separate ~- _. 1b~e rules .inter-alia provi~ lh;:t . for · ~
pat,po'IC of. detcrminin!'l seniority the date of commencement of collli·
-
~ervice . in .the post of .District Magistrate ,shall be ·deemed to
be the_ date of first appointment to the .category of Sub-Judgi:. : '!be
Q
appellants' appeals were ultimately rejected .by .the GO-.:ernment . of
llli4ia. .on Mart:h 26, 1966, the ·Government cf ·Kcrala pnbli•h"4 the .
fuial integrated list of the Tr:wancore-Cochin and Madras personnel
c( the Judicial Officers as
~ ~:·:ember 1. 1956 (vide Ext. P-31)
•hawing respondents 6 .and 7, who were junior to him as per ~
~
· integrated list, now pl::.:cd above -him in the fil'la.I Jist.
ln. ·the preliminary list although his date of
~mmencemcnt of conll- · H
nucllS ~°" was shown as .May 26, 1951, lie was assigned in b
~list-October 6, ~951 bein; the .date .of his appointment to~C-.0
~
-~ ·,rJic .equate4 <;a1c:g<>ry as.on November 1, _1256. ~ !he:~
'
c
D
-
.DAMODARAN.V. KERALA (Goswami,/.)
backgl'ound, the appellant filed a writ application in the High Court
t:I. ~ala praying ~or restrainin!l ~ State _Government and the
-~
of the High Court from nnplemenling Ext. P-31, the fi.nal
list, and to award to the appellant appropriate rank and· seni()rify
iabove respondents 6 and 7, amongst other prayeis.
His appllcation
came. up before a Full Bench of the High Court and the same was
rejected.
The respondents were impleaded in the High Court 'in a
representative capacity and the High Court's order under or. I r.8,
CM! Procedure Cod~, were obtained and the notice was published in
the newspaper.
Several questions were ·raised. before the High Court, but 1he
aP.Pdlant here has made two main submissions : .
(I l His seniority in service in the
integrated judicial
service in Kera!a should be counted from May, 26,
195 I, the date on which he joined service and from
which he has contimlously been working.
(2) There is no justification in. law for creation of a
separate cadre for Magistrates of the executive origin
and for reserving four posts of District Magistrates,
.CKC~vely in favour of Sub-Divisional Ma&istrates
"- C&CCUtive origin.
1be ~~evance is that he should have been assigned May
26; l~I 'i · ·
of October ·6, 1951. Itis clear that under 1CCtion
115(5) Of ·the Act "the Central Government may by order establish
ODii or more Advisory Committees for the purpose of assistina it, in
E
regard toF
(a) the division and integration of the seryiqes am<>!)g the.'
new States and the ·States · Of Andhta Prades!i and:
Mi.dtas; and
·
·
· ·
· ·
ib) the ensutjng of fair and equitable · treatnient -to all
· · persons affected by the provisions ()ftl!IS section iillil'
the proper consideration· of any representation made
by such persons".
Under iection 117 ()f th.e Act, "the Central Government miiy at 'lln)'
ti!ne ~ore of after . the aJIP<\inted day give such directions tb' any
!'hate Government as may appear 1o it. to be necessary fo'r the plltp0$e.
d of gi\il!g ~llect to the foregoing provision5 of this Part and the sta!O
Govemjnent shall comply with such directions". In accordance with
:he otovisions of this Act, a meeting of the Chief Secretarle6 of 1he
various StateS that were to be affected bv the reorg.anisation, was held
on MilY -18-19, 1956, at the invitation of the Central Gciverrunellt. In
this ~1111 certain decisions were taken_ as W. the -~neral prinCiple!I
'hat f!hi>uld be observed with regard to the ,1ntegtatjpn W(ll'k· · tlie
H
GovelmlCllt of India thereafter info~ .the State (lov~ment that
Ibey -~ decided ·that the work of -integration of 5crvi~ .tb~!!ld be
dealt. ~f'ilb :jly t1': State Governmcnta in· tbe light qf ~netl\1 .l'r.iJl!:iples
elrelff ~ided in .the llllllh!I Of ~
Cltiot ~~~ocs •.. W•th \t~td
874
SUPREME COURT REPORTS
[1974] 2 S.C.R.
tp the pr~ciple for d~termining equation of posts and relative seniority,
the followmg conclus10ns were· reached at the conference <if tbc Chief
Secretaries :
·
"It was agreed that in determining tlie equation of posts,
the following factors should be borne in mind :-
(i) the nature and duties of a post;
(ii) the responsibilities and powers. exercised
by
the
Dfficer holding a post; the extent of territorial or other
charge held or responsibilities .discharg¢;
(iii) the minimum qualifications. if any,
prescribed for.
recruitment to the post;
(iv) the .salary of the post;
It was agreed that in determining relative seniority as
between two. persons holding posts declared equivalent to
eac9 other, and .drawn from different States, the following
points should be taken into account :-
(i) 'Length of. continuous service, whether tomporary or
. permanent, in a particular grade; this should exclude
periods for whic!J. ;an appointment is held in a purely
. stop-gal! or fortmtous arrangement;
(ii) age of the person;
other factors being equal; for
instance, seniority .. ll:IJIY be dewmined on the · basis
'of age.·
·
·
·
Note : It was also agreed that as far as possible, the
inter se senorit)!. of offi~ drawn' from the same State
shau:Id not be .if~tlil'be<!".
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This position was liltdted,. as 'a.(ready noted earlier, when the Central
Govern!llent after· eonside~ the fepres.entations of the officers made
under •section 115 { 5) !>f '.llie; Act IJ'<"ided that "the.· officers allocated
to Kerala State· ft6nr former ~.
may be a.(lowf;:d the benefit of
F
crncrge11Cv serVlce towards' ~OHty' jn the equated categorr, if such
service towards service (liiC) would. have . been regulafiSed from the
date of their- emergency aJ'P(Jintmel)t
and
counted. for }nteNtate
seniority''ih 'i!ltegtation 'on ht Novein!lfr !9,56, had
these ol!icers
rernairii!d 4!1"Mallraii" '(vide EX!. pc33 dated r6:2-1963. Which mooified
Ext. P·3lhii\t.ld l;;.3;196'2). We have -~lso ~eferrcd to.a Wtet,from
the Government cif' Madras to 'the Kerala' Go~ernment dated . .July .20, · G
1963 (Ext. 1'~4} wherefroin tlie following bxtracUs .tcleyant:-· ·
"A~dirig to snb-paragrapb (2) of paragraph I of the
said G.O. the. date from .. WhiCh an allottee lo this State· frO!n
1he former Triwancore'-Cochiri State was continuously ·'hot&.
ing the cOtresptm.tlirtg l\i!St .fa the formef Thwancorc-!Cochid
State-, Is taken into 11ceount for the purpO'le of ft:(mg his
seniority in the equated cadre in this state·, Therefore, f0r
drawing up the integrated gr~ation list 1!nder ~ub,paragrap~
(3) Of padgraph i ·of tlle said G;O., onfy contmuous service
'·
1 .
OAMODAJ!.AN' v. KERALA (Goswami,/.)
875
A
:whe!her. tegU!ar, . tempprary or emergency of the · allottees is
"!akeil ·lnto account".
Hence !he positipn in Madras is that continuous service of the· appel181!\ "whether regular, temporary or emergency" would have been ·taken
into account for the purpose of seniority. . It is also clear and not
even displited that the appellant has been in continuous serVice from
n
May 26, 1951. That being the positipn, the co11clusion is iiresistible
m view of tlie·Governmcnt's decision (vide Ext. P-33) that the appellant was ent.itled to the assignment of May 26, 1951' for the purpose
of his. seniority.
·
Dr. Syed Mohamad, on 'behalf of the !st respondent, submits that
tha question has to be decided with reference to rule 11 (2) of the
c Madras Rules. The same may be set out :
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11(2) : "Where the appointment of a ·persqn as Di&trict
· Munsiff in accordance with these. rules would invplv~ ex~:
sive ·expenditure on travelling allowance or exceptional, &dmi~
n~ative inconvenience, the Governor maY
appoint . any
other ,person in the· list of approved . candidates, A persl>!I
appointed under this rule shall. not be regarded as a probationer in the serVice or be entitled-by .reason only Or such
appointment to any preferential claim to future · apPQintment
to the service".
.
The High Court accepted this submission when it observed as .
follov.s :-
"The apPQintment under rule .11 ( 2) is a · temporary
uPPQintment and it is s0 stated in the 'l'Qle itself.
ApPOint~
ment under rule 11 ( 3) also . is a temporary lippotnll!lent
though this can be even· of persons who dti not ·figure. ·Jlt
all in any select list prepare<! lifter -the selection by ··!lie
Public-· Service Commission. A reading of the "rule-,rule
11(3) Of the Madras State Judiciar Service 1\Ules.-shows
Jhat this :·rule' wm·. be resorted to in . Cll84:ll . of. . !ltltetgency.
Sullice. to iiay at this stage that service rcni1erecl.i11 a tempomrv
.... capacity.oy virtue of a:eintme1!ts ~
.. C'C.-rutes 11(~)
or 11{3), at·any rate the
le. of it, did not necessarily
eou11t for the pu~ of inter
seniority among the pei:s®S
who belonged to. the particular serviCc in the State oi Ma(Jras.
The Ooverrunent of India decided that this service which
did n<lt tount ·for· inter sc seniotity among the Madras pers011nel hi· the State . of Madras and did · not count for interState !elliority in the matter of integration of the persomlCl
.~ ~ined in the State, of Madras. with th03C th$! _have
beea allotted''to the State Of Madras,. Will not count ,for inter·
Stiite:ariaiotity of pcrson'nehllotted fronl.tbo State. of Ma~
tcrthe .State of:.~ ... for the, pitrpose C!t in.le8<'lltiot1 with
tli~·T~vancore-COcl(111 per10~,
It1isull!l:.11i!1t.nilC ll ~'!!lit\~ llJlPOll!~• M~ ltC3).
ho!Wil\'111"; i1 not at all tClevant fQl''..1!le. ~
·Of the pres~nt case'
876
SUPREME COURT REPORTS
(1974] 2 S.C.R.
The qpestion that arises for consideration is that whether after final
A
allotment of the appellant under the Act io the State of Kerala, tho
.ap(lticauon of the Madras Rules would be at all re1cvant m face of ·a
.clear ·decision of the Government of India made under the Act. We
have to hold' in the negatIVe.
Apart !rom that, tne GoVernment of
In~ia. t90k a decision. wluch also the Kerala Government bad accepted
(V!d.e Ext. R-2) as already .i;et out.
In tnis view of the matter we are
unable to agree with the High Court that the appeltam nad bee11
B
.correc!ly assigned his date October 6, 1951 instead Uf May 26, 1951.
It is 11ext submitted by the learned counsel for the 1st respondent
that the appointment Of the appellant was "purely stop-_gap or fortuitous
.arrangement" as mentioned in the principles agreed at the· meeting Ci
.the C:hief Secretaries.
He also tries to reinforce his argument· by
referring to rule 11 ( 3) which provides that "where it is necessary in
C
the pUblic interest owin& to an emergency which has ar1Sen to fill
immecHalely a vacancy in the category of District Munsifs . '. .... "·
Assuming that rule 11 ( 3) may be invoked . and the earlier decision of
the Government ·of Iiidia in conformity with· the· agreement of the
Chief Se\'fetaries referring to "purely stop-gap or fortuitous arrangement" are· applicable, we are. unable to agree that the
appellant's
service is·· either filled. "owing t<i an emergency'' or th·11 the saiire is
0
~
in a "purely stop-gap or fortuitous arrangement''. The Ie8med ·
.CCJillllSel for the 1st respondent followed by the counliel_ for the Unioll
-of lndia has subinitted thai on account of the writ application' by
Venkataramana in the High Court the appointment of the appelltili.L
.had to J>e made as a temporary measure as has been mentioned in ,die
letter of_ appointment it.self.
We are, ho"'.ever, unable to accept this
submission . as correct.
It ' is common ground !hat the appellant" has
E
been' app0inted in a: regular manner through the Public Se::vice Commis$iol) 3\ld his .llPpointme.nt cannot by any stretch of imagination be
made to fill a "purely stop-gap or fortuitous" vacuum.
AA noticed
earlier, .the Government of India has accepted the f'OSition··that an
~llotte<l employee should not. suffer any disadvantiige if h~ would not
have been sl)bi_ecied ti> a like handicap in.his ~nt~.' It is ,dear
from tit~ position taken by the ll;fadras .Oovernment. that th~ apj)j)ll"Dt
F
would have gqt the. be!l;fit .of his. GOntmuous 8PJ>?1Dlment -~ ~_!ldras
w.e.f. May 26, '195.1 (V!de Ext. P.-34). That be111g the poSit1on tlie
submissions of (he learni;d counsel for the .respondents ar~ of no a,vail.
We ho~d that the appellant should be given the benefit o! his sepj6rity
reckonmg · his continilO\ls app<lintment and . 'l.S8ignin~ the date 26th
May, 1951 a.nd substituting. the sBrlle in the final list for 6th 'October,
1951.
.
G
With reganl to-the' second submis8ionof!he appellant regarding the
reservation of a separate cadre for llie· District Magistrates ·and SubDivisionili MaglStnites of'executive ·ongiit, we do not see' any "force in
his col'ittlitiOil. 'It'is· open•to·tbe Stilte Government to <:onstbute as
many cadres as they choose accOrdhrg ·to adininistrati'l't -=onvenience
and e~ped!e1.',CJ·
Ther~ is, therefore, no. m~rit i~ the objectio~ .f? the
JI
creatlort Of"a sej>a'r.ate:ctltltl!· Of DjM<!t' Magistrates and ·Sub"DIVIS!oilill
Magistrates·· ill eiec\ftive· .,.. ·'J'Mt' s\!tHlllssioit ·of 'the appellant ·is
·without any force.
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l)AMODARAN v. KERALA (Goswami, /.)
877
\\.;ith regard to Civil Appeal No. 2630 of 1969 of P. S. Menon,
Slln-JuJge, Quilon, the above submissions, which we h•ve dealt with
\Vere ul>o advanced in his case. For the same reasons the appellant
in. this appeal will be entitled to assignment of 12th F~bruary, 19$5,
as the date of contmuous employment of his serv1c~ after allotment
to·.•h• Kerala State for the purpose of his seniority.
The learned
counsel, however, additionally contends that he should have the berieftt
of what is described as the K.L.M. Principle in. the following circum·
stances :
·
One Sethu Madhavan, who is admittedly junior to . the appellant,
was. provisionally allotted to the State of Kerala along with the appellant a1 the· initial stage when the new State was co11stituted. Later
on; .. however, Sethu Madhavan arranged a niutual transfer with a Jtidiclal, Officer froltl"· Madras who desired to take transfer to Kerala and
for: that .reason his provisional allotment was cancelled and he was.
not' finally allotted to Kerala. In the final
integration list Sethu
Madhavan's name, therefore, does not appear.
·
If S&thu Madhavan had remained. in Kerala, the position of the
a:ppellant in the liSt sight have been different, since Sethu Madhavan'&
date of. continuous service is 1-7-1954; But the final list will-now
have to be· judged without taking .note of Sethu· Madhavan wl)o· !lad
already left the State.
It is submitted . that since tbe final !is\ has
been pi'ep11ted as on 1-11-1956, the appellant should get .the ·benefit
of. his-dat\'. Since, however, Sethu Madhavan cannot be held to be
in service ·1n Kerala for the purpose of the final integrated· list;• the
appellant is not entitled to assignment of his date.
We may now describe wh~t the K.L.M. Principle is. The expressl!m 'K.L.M. ·:principle'· which came into exist.ence in the TravancoreCochin State by an order dated 27th September, 1950, has been describoJ in the following words by· the High Court in the judgment : _
"The relative seniority of the Travancore and Cochin
personnel in any ~lass. or grade in the common 'eniority list
will be determined with reference to the date of ccmn.encement of continuous service in the same. or similar class or
grade of posts subject, however, to the condition that the
.seniority of the Travancore personnel as between themselves
or of the Cocl)in personnel as between themsel~es should not
thereby be disturbed".
Dealing with the point the High Court observed as follows :
;'Though the said Sethu Madhavan co11.1menco~ ~rvice
earliedn the State of Madras he was admittedly iuruor to
the petitioner and therefore it will
become necessary for
·settling the inter se seniority of the petitioner vii-a-vis &!hu
MaJha\lan to assign to the petitioner in integrated gradauon
list a place above the said Sethu Madhavan; This is so
because the principle settled as early as 29th' December 1956 ·
by 0.0. of that date clearly provided that in effecting integration the inter se seniority of persons in either branch that
<! 78
SUPREME COURT REPORTS
(1974] 2 S.C.ll.
are integrated should not be affected. The question however
cannot arise when there is no need to fix the inter se seniority
of the petitioner vis·a-vis the said Sethu Madhavan"
We agree with the above observations of tile l{igb Court and
reject th~ submission of the appellant that he is entitled to the benefit
A
of the K.L.M. Principle on the basis of the provisional allotment of
B
Scthu Madhavan.
It may be mentioned that we had allowed without objection from
the respondent CMP No. 9761 of 1973 and admitted the documents
menlion~ therein.
In tile result the appeals are partly allowed.
The 1st and 2nd
respondents are directed to assign to the appellant, C.P Damodaran
Nayar, the date May 26, 1951, by substituting the same for October. 6,
1951, in the final integration list and to give him the consequential
beriefits to which he may be entitled by virtue of this assignment. The
aforesaid respondents are also directed to assign to ;the appellant,
P. S. Menon, the date February 12, 1956, in the final integration list
aod to give him such consequential relief as he m•v be entitled to in.
pursuance of the new assigned date. The judgment of the High Court
i_s set aside only to the extent indicated above.
The appellants are
entitled to costs in this Court. . Two sets only.
Civil Appeals Nos. 304 and 305 of 1972 are identical by the
same two appellants and they stand disposed of accordingly by this•
(odgm.Ur.
·
V.P.S.
Appealr p11r1/y al/owed.
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