# M. D. SHUKLA & ORS v. STATE OF GUJARAT & ORS

- **Citation:** [1970] 3 S.C.R. 515
- **Court:** Supreme Court of India
- **Decided:** 1970-02-06
- **Case number:** Civil Appeal No. 458 of 1969
- **Bench:** J. C. Sil\H, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-d-shukla-ors-v-state-of-gujarat-ors-5058
- **Pages:** 10

## Headnote

States Reorganisation Act 37 of 1956 ss. 115, 116, 111-Bombay Reorganisation Act 11 of 1960, ss. 81, 82 & 83-Pennanent employees of
Saurashtra and Kutch States allotted to Bombay State af~er passing of
Act 37 of 1956 but postfd in districts of Saurashtra and Kutch-Allotted
to Gu;arat State after passing of Act 11 of 1960-Transferred to Secretariat-Government order regularising their services in Secretariat and fixing their pay and seniority-Regularisation whether amounted to 'absorption' within nieaning of Bombay Allocated Government Servants' (Absorption. Seniority, Pay and Allowances) Rule., 1957,-R. 138 of Bombay Civil Services Classification and Rearuitment Rules, 1939 as amended
in 1957 whether violated by such regularisation.
Prior to November I, 1956 the appellants were holding permanent
posts in the ministerial service of the Secretariats of the Part B State
of Saurashtra and the Part C State of Kutch.
By virtue of s, 8 of the
States Reorganisation Act 37 of 1956 the new State of Bombay which included the territories elf the States of Saurashtra and Kutch was formed.
Under s. 115(1) of the Act the appellants were allotted to serve in connec:tion with the affairs of the new State of Bombay.
Bv the proviso to
s. 115(7) it was provided that 'conditions of service applicable immediately before the appointed day to the case of any person allotted to another State shall not be varied to his disadvantage except with the previous approval of the Central Government'.
Section 116 provided for the·
continuance of officers in equivalent posts.
By s. 117 power was conferred upon the Central Government to give directions to State Governments for the purposes of ss. 114, 115 and 116. The Act authorised the
Central Government to establish one
or more
Advisory
Committees
to
advise
the
Government
on
the
division
and
integration
of
the services in the new States and for ensuring fair and equitable treat,
ment to all persons affected by the provisions of s. 115 and for proper
consideration of any representation
made by those persons. A large
majority of the members elf the ministerial branch of the Secretariats of
the State of Saurasht•a and Kutch were unwilling to be posted in the
Secretariat of the new State of Bombay.
A large majority out of them
including the appellants were accordingly posted in the districts of the
former States of Saurashtra and Kutch.
Under the Bombay Reorganisation Act 11 of 1960 the States elf Gujarat and Maharashtra were carved
out of the territory of the new State of Bombay. Sections 81, 82 and 83
of the 1960 Act were substantially the same as ss. 115, 116 and 117 of
the 1956 Act. The services of the appellants were under s. 81 of the
Act allotted to the newly constituted State of Gujarat. The State elf
Gujarat transferred the appellants from the districts to the Secretariat~
After consulting the Public Service Commission it issued on August 19,
19~6 an order"re~l~rising" the services of the app.ellants and fixing
their pay and semonty. The officers of the Secretariat who before the
passing of the said order cotistituted the ministerial service filed a petition
in the High Court challenging its validity. The High Court allowed the
petition mainly on two grounds, namely : (i) that the appellants were not
absorbed in the ministerial services of the Secretariat within the meaning
516
SUPREME COURT REPORTS
[1970] 3 s.c.R.
of the Bombay Allocated Servants' (Absorption, Seniority, Pay and Allowances) Rules, 1957; (ii) that r. 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939 as amended in 1957 allowed recruitment to the Ministerial Staff of the Seci'etariat by nomination after an
examination or by promotion from the Lower Division and it Vv'aS not
open to the Government to adopt any other method.
The High Court's
-decision was
challenged in appeal before this Court. The Court
noted
that
no
equivalence
had·
been
established
between
the
posts in the Secretariats of the States of Saurashtra a

## Text

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515
M. D. SHUKLA & ORS.
v.
STATE OF GUJARAT & ORS.
February 6, 1970
[J. C. SIL\H AND K. S. HEGDE, JJ.)
States Reorganisation Act 37 of 1956 ss. 115, 116, 111-Bombay Reorganisation Act 11 of 1960, ss. 81, 82 & 83-Pennanent employees of
Saurashtra and Kutch States allotted to Bombay State af~er passing of
Act 37 of 1956 but postfd in districts of Saurashtra and Kutch-Allotted
to Gu;arat State after passing of Act 11 of 1960-Transferred to Secretariat-Government order regularising their services in Secretariat and fixing their pay and seniority-Regularisation whether amounted to 'absorption' within nieaning of Bombay Allocated Government Servants' (Absorption. Seniority, Pay and Allowances) Rule., 1957,-R. 138 of Bombay Civil Services Classification and Rearuitment Rules, 1939 as amended
in 1957 whether violated by such regularisation.
Prior to November I, 1956 the appellants were holding permanent
posts in the ministerial service of the Secretariats of the Part B State
of Saurashtra and the Part C State of Kutch.
By virtue of s, 8 of the
States Reorganisation Act 37 of 1956 the new State of Bombay which included the territories elf the States of Saurashtra and Kutch was formed.
Under s. 115(1) of the Act the appellants were allotted to serve in connec:tion with the affairs of the new State of Bombay.
Bv the proviso to
s. 115(7) it was provided that 'conditions of service applicable immediately before the appointed day to the case of any person allotted to another State shall not be varied to his disadvantage except with the previous approval of the Central Government'.
Section 116 provided for the·
continuance of officers in equivalent posts.
By s. 117 power was conferred upon the Central Government to give directions to State Governments for the purposes of ss. 114, 115 and 116. The Act authorised the
Central Government to establish one
or more
Advisory
Committees
to
advise
the
Government
on
the
division
and
integration
of
the services in the new States and for ensuring fair and equitable treat,
ment to all persons affected by the provisions of s. 115 and for proper
consideration of any representation
made by those persons. A large
majority of the members elf the ministerial branch of the Secretariats of
the State of Saurasht•a and Kutch were unwilling to be posted in the
Secretariat of the new State of Bombay.
A large majority out of them
including the appellants were accordingly posted in the districts of the
former States of Saurashtra and Kutch.
Under the Bombay Reorganisation Act 11 of 1960 the States elf Gujarat and Maharashtra were carved
out of the territory of the new State of Bombay. Sections 81, 82 and 83
of the 1960 Act were substantially the same as ss. 115, 116 and 117 of
the 1956 Act. The services of the appellants were under s. 81 of the
Act allotted to the newly constituted State of Gujarat. The State elf
Gujarat transferred the appellants from the districts to the Secretariat~
After consulting the Public Service Commission it issued on August 19,
19~6 an order"re~l~rising" the services of the app.ellants and fixing
their pay and semonty. The officers of the Secretariat who before the
passing of the said order cotistituted the ministerial service filed a petition
in the High Court challenging its validity. The High Court allowed the
petition mainly on two grounds, namely : (i) that the appellants were not
absorbed in the ministerial services of the Secretariat within the meaning
516
SUPREME COURT REPORTS
[1970] 3 s.c.R.
of the Bombay Allocated Servants' (Absorption, Seniority, Pay and Allowances) Rules, 1957; (ii) that r. 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939 as amended in 1957 allowed recruitment to the Ministerial Staff of the Seci'etariat by nomination after an
examination or by promotion from the Lower Division and it Vv'aS not
open to the Government to adopt any other method.
The High Court's
-decision was
challenged in appeal before this Court. The Court
noted
that
no
equivalence
had·
been
established
between
the
posts in the Secretariats of the States of Saurashtra and Kutch and
the posts in the new State of Bombay or later in Guja:rat and that
there had been no integration df the services by the Central Government.
It was conceded before the Court that the State
had the authority to
1ransfer, subject to the Constitution and the rules made under Art. 309,
any public se·rvant to render service which by his training and aptitude he
was competent to do.
HELD: (i) The fact that the expression
'absorption' had not been
used in the impugned order would not justify the inference that there was
no intention to aOOorb the former Saurashtra and Kutch State personnel
1n the Secretariat. [52! F]
In the absence of determination of equivalent posts under the orders of
the Central Government, the State df Gujarat was competent, as a matter
of provisional arrangement to absorb the former Saurashtra and Kutch
States personnel in the ministerial establishment of the Gujarat State Secretariat.
In terms the order said that the persons named therein "should
"be treated to have been regularly appointed in the posts shown against
their names in column 4 of the statement" appended to the order. That
clearly amounted to absorption. [521 0-H]
(ii) The High Court was wrong in holding that the impugned crrder
was bad because it contravened r. 138 of the Recruitment Rules.
Assuming that r. 138 requires the State to follow a certain method for
.recruitment . to ·the ministerial service, that rule made under Art. 309 of
the Constitution cannot take away the statutory right vested in the per~
sonnet of the !former Saurashtra and Kutch States which ther acquired
under s. 115(7) of the States Reorganisation Act, 1956 to hold posts in
the new State which we·re equivalent and on terms which were not, unless
previous approval of the Central Government was obtained, disadvantage-
-0us.
Since the arrangement which was made by the Gujarat Government
must be regarded as provisional and to ensure so Jong as the Central Government did not make a finaJ d~cision, it was not open to the officers of
"the Secretariat to challenge the authority of the Government of Gujarat
either to transfer officers from the Districts and to post and assign them
<futies in the Secretariat or to fix their pay and seniority among the officer
<>f the Secretariat performing ministerial duties. [523 G-524 BJ
N. Raghavendra Rao v. Deputy Co1nmissioner, South Kanara, Manga1ore. [1964) 7 S.C.R. 549 and Union of India & Anr. v. P. K. Roy & Ors.
11968) 2 S.C.R. 186, applied.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 458 of
1969.
Appeal from the judgment and order dated July 1, 1968 of the
Gujarat High Court in Special Civil Application No. 1499 of
1966.
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M. D. SHUKLA V. GUJARAT (Shah, J.)
517
M. C. Chagla, S. K. Dholakia, Vi~et Kumar and J. R. Nanavati, for the appellants.
S. T. Desai, B. D. Sharma and S. P. Nayar, fot respondent
No. 1.
S. S. Shukla, for respondents Nos. 2 to 148.
The Judgment of the Court was delivered by
Shah, J.
Certain officers in the ministerial branch of the
Secretariat Service of the State of Gujarat moved a petition in the
High Court of Gujarat for an order directing the State Gover,nment to treat its order dated August 19, 1966 as "illegal, void and·
of no effect" and to forbear from enforcing its order treating the
persons whose nanies were specified in the annexure to the order.
as servants of the "Secretariat cadre".
The High Court of Gujarat
granted the petitio.n and declared the order dated August 19, 1966,
invalid.
With certificate granted by the High Court this appear
has been filed.
Prior to November 1, 1956, the appellants were holding permanent posts in the ministerial service of the Secretariats of the Part B
State of Saurashtra and the Part C State of Kutch. · By virtue of
s. 8 of the States Reorganization Act 37 of 1956 the new State
of Bombay, which included the territories of the States of Saurashtra and Kutch, was formed.
Section 115 of the States Reorganisation Act made provisions relating to services other than All-India
Services.
By sub-s. (1) of s. 115 it was enacted, inter a/ia, that
every person who immediately before the appointed day was serving
in connection with the affairs of any of the existing States specified
therein shall, as from that day, be deemed to have been. allotted
to serve in connection with the affairs of the ·successor State to that
existing State.
By the proviso to sub-s. (7) it was provided that
conditions of service applicable immediately before the appointed
day to the case of a,ny person allotted to another State shall not be
varied to his disadvantage except with the previous approval of the
Central Government.
Section 116 provided for the continuance
of officers in the same posts.
By s. 117 power was conferred upon
the Central Government to give directions to any State Government that may appear to be necessary for the purpose of giving
effect to the provisions of ss. 114, 115 and 116 of the Act.
Under the States Reorganisation Act, 1956, the appellants
were allotted to serve in colljllection with the affairs of the new
State of Bombay. In exercise of the powers under Art. 309 of the
Constitu!ion, the Government of Bombay sanctioned certain rules
called "The Allocated Government Servants' (Absorption, Seniority, Pay & Allowances) Rules, 1957". Those rules governed the
servants who were allotted to the State of Bombay on reorganisa-
518
SUPREME COURT REPORTS
[1970] 3 S.C.R.
tion.
A large majority of the members of the ministerial branch
of the Secretariat of the States of Saurashtra and Kutch were, it
appears, unwilling to be posted in the Secretariat of the new State
of Bombay.
The,y were accordingly posted in the districts of the
former States of Saurashtra and Kutch.
Under Act 11 of 1960 called "The Bombay Reorganisaticm
Act" the States of Gujarat and Maharashtra were· carved out of the
territory of the new State of. Bombay.
Under s. 81.
provisions
relating to services other than All-India Services were made and by
s. 82 provisions as to the continuance of officers in the same posts
was made.
By s. 83 power was given to the Central Government
to give directions to the States.
Those provisions were substan-
.tially the same as the provisions of ss. 115, 116 and 117 of the
States Reorganisation Act, 1956. The appellants were allotted to
serve in connection with the affairs of the State of Gujarat under
s. 81 of the Bombay Reorganisation Act.
The newly constituted State of Gujarat finding a dearth of
experienced officers in the Secretariat transferred the appellants at
diverse times between the years 1961, 1962 and 1963 to the
Secretariat of the State of Gujarat and assigned them duties in
<:Onnection with the Secretariat Service.
Orders were issued from
time to time fixing their scales of pay and seniority.
Apparently
the Public Service Commission raised some objections about an
attempted integration between the officers who were originally
serving in the Secretariat Service, and those who were posted from
the districts.
Ultimately on August 19, 1966, the State Government issued the o:rder to the following effect :
"The questiol'J. of regularising the appointment to
various posts in the Secretariat Department on and after
1st May 1960 of the drafted persons was under the
consideration of Government for some time.
Government is now pleased to direct, in consultation with the
Gujarat Public Service Commission, that the persons
shown in the accompanying statement should be treated
to have been regularly appointed in the posts shown
against their names in column-4 of the statement with
effect from the date shown in column-5 in the Departments mentioned in column-3 of the statement.
2. As regards fixation of their pay and seniority
orders have already been issued in Government Resolution General Administration Department No. SCT1161-F, dated 25th April, 1961 and Government Resolution General Administration Department No. SCT1162-KH, dated 14th March 1964. The Departments
are requested to fix their pay and seniority accordingly.''
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M. D. SHUKLA V, GUJARAT (Shah, J.)
519
Appended to the order was a list of 90 persons designating the
departments iin which they were posted, posts to which appointed
and the dates from which they were appointed.
The officers of the Secretariat who before the date of the order
. constituted the ministerial service then filed the petition out of
which this appeal arises challenging the validity of the order of the
Government.
The petition was founded on three grounds : ( 1)
that the order violated r. 138 of the Recruitment Rules framed
by the Government of Bombay in 1957; (2) that the order violated
the proviso to cl. ( 6) of s. 81 in that it altered the conditions of
service of the applicants; and (3) that it violated the provisions of
the Allocated Government Servants' (Absorption, Seniority, Pay
& Allowances) Rules, 1957.
Counsel for the applicants conceded before the High Court
that the transfer of the former Saurashtra 11nd Kutch States Secretariat personnel to the Gujarat Secretariat per se was not open to
objection.
The High Court did not consider whether the Saurashtra
and Kutch States secretariat personnel had "any rights flowing on
account of absorption 11nd integration of service under the States
Reorganisation Act, 1956 or the Allocated Government Servants'
Rules, 1957 ."
But the High Court held that since the impugned
order purported to amalgamate the former Saurashtra and Kutch
States personnel with the Gujarat Secretariat Service contrary to
the terms of r. 138 of the Recruitment Rules. and the Governmept
had no authority to vary the method of recruitment provided by
the statutory r. 138 of the Recruitment Rules which was mandatory, the orders of transfer to the Secretariat which was not made
in the process of integration could not operate as absorption under
the Allocated Government Servants' (Absorption, Seniority. Pay
& Allowances) Rule~. 1957. The High Court also observed that
when the ministerial service employees of the former Saurashtra
and Kutch States Secretariats were absorbed in the districts, integration of the services was complete and any transfer thereafter
to the Secretariat could not and did not amount to absorption i·n
equivalent posts.
It is necessary first to examine the scheme of ss. 115 & 116
of the States Reorganisation Act, 1956. Section 115 was intended
to provide for the conditions of service of employees who ilnmediatelv before November 1, 1956 were serving i;n connection with
the affairs o.f a State and were allotted to serve in connection with
the affairs of another State.
Power to fix the conditions of service
was reserved exclusively to the Central Government.
For that
purpose the Central Government was authorised to establish one
or more Advisory Committees to advise the Government on the
division and integration of the services in the new States and for
ensuring fair and equitable treatment to all persons affected by the
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\ ·,~.,~i-;.:~~· -~\ ;>
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,' SUPREME , cOURT REPORTS
[1970] 3 S.C.R.
\" '..
. .. \\ ·,.
'-
'-<: provisions ~f s.· 115 and for proper consideratlonof any r;p;~senAo
. tatio°'made by those persons.
By the proviso to sub-s. (7) s. 115 ·
a guarantee was_ given to every allotted public servant that his
conditions of service shall not be varied to his disadvantage except
with the previous approval of the Central Government.·' Section 116
· provided for the continuance of officers in equivalent posts.
· This Court in N. Raghavendra Rao v. Deput;:y. Commissioner,
South Kanara, Mangalore(1) held that the effect of sub-s. (7) of
s. ll 5 is to preserve the power of the State to make rules under
Att; 309 of the Constitution, but the proviso imposes a limitatiqn
on the exercise of that power; the !imitation is that the State cannot
vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in sub-ss.
(1) & (2) of s. 115. In the view of the Conn the broa.d purpose
underlying the proviso to s. 115 (7) of the Act was to ensure
that the conditions of service shall not be changed except with the
prior approval of the Central Government, that is, before embarking on varying the conditions of servfce, the State Governments
should obtain the concurrence of the Central Government.
·
In Union of India & Anr. v. P. K. Ro,v & Ors.(2) this Court
held that it is the duty of the Central Government ta integrate
the services, but the State may be asked to prepare a provisional
gradation list provided the Central Government maintains its .
control over it.
It is clear that the conditions of service applicable immediately
before the appointed day in the case of any person who is allotted
to anot.her State cannot be varied to his disadvantage except with
the previous approval of the Central Government. This protection·
could not be removed by the rules made by the State subsequent
to November 1, 1956, U;nless the previous approval of the Central
Government was obtained thereto.
·
It is true that the ministerial service personnel in the ·states of·
Saurashtra and Kutch, after they were allotted to the State of
Bombay were posted and assigned duties in various districts in
Saurashtra and Kutch.
But in the absence of evidence to show
that the previous approval of the Ct;ntral Government was obtained, their right to be absorbed in equivalent posts in the new State
of Bombay and later in the.State of Gujarat was not thereby
affected. It appears that there has not been any equivalence established between the posts in the Secretariats of the States of
Saurashtra and Kutch and the posts 'in the new State of Bombay
and later in the State of Gujarat to which the members of the
ministerial service of the Secretariats of ·former Saurashtra and
Kutch States were allotted.
The mere fact that they were posted
(I) [1964] 7 S.C. R. 549.
(2) [1968[ 2 S. C. R. 186.
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M. D. SHUKLA v. GUJARAT (Shah, /.)
521
and continued to render service in the Districts will not in ~ur
jud~ment, affect the right of the personnel to be absorbed in the
eqmvalent posts m the Secretariat and on terms not disadvarita-·
geous to those they were already entitled except with the previous
approval of the Central Government.
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It was conc~ed, and rightly! that the State has the authority
to transfer, subiect to the Consl!tution and the rules made under
Art. 30? any public servant to render service which by his training
and aptitude he was competent to do.
Transfer of the personnel
from the States o.f Saurashtra and Kutch to the Secretariat in the
S~t~ of. Gujarat. and assignment of duties performable by the
c mm1stenal staff m the Secretariat cannot be challenged, and that
because they were posted between 1956 and 1960 in the Districts
they.will not ~e d~prived <_>f their statutory right under s. 115(7)
pro~s?. Postu;ig m t~e districts was and must rema.\n purely
prov1s10nal~ unhl final mtegration is made by the Central Government.
It is common ground that no such final integratiO!ll had
been made by the Central Government,
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Two grounds appealed to the High Court in deciding the case
against the appellants : ( 1) that the appellants were trimsferred to
the Secretariat of the State of Gujarat, but they were not absorbed
in the ministerial service of the Secretariat of the State of Gujarat.
In the view of the High· Court there was merely "regularisation''
of the appointment of those persons for the purpose of performing
service in the Secretariat; and (2) that the order dated.August 19,
1966 was contrary to the Recruitment Rules, 1957.
If it be grainted that the State was competent to transfer and
did transfer the appellants to perform service in connection with
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the affairs of the State in the Secretariat, it is difficult to hold that
when the State "regularised" the service of the appellants in the
secretariat with the consent of the Public Service Commission there
was no absorption under the Absorption Rules.
It is true that the
expression "absorption" has not been used in !he oi:cier, but that
will not justify an inference that there was no mtentton to absorb
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the former Saurashtra ~
Kutch States personnel in the Secretariat. In the absence of determination of equivalent posts unde~ ,,
the orders of the Central Government, !he State of Gujarat was '
competent, as a matter of provisional arrangem:nt to ab~~rb ~e
former Saurashtra and Kutch States personnel l\1l the mm1stenal
establishment of the Gujarat State Secretariat.
In terms the order
says that the persons named therein "should be treated to have
8 . been regularly appointed in the posts shown against their nam:s
itn column-4 of the statement" appended to the order.
That, In
our judgment, amounted to absorption.
522
SUPREME COURT REPORTS
[1970] 3 S.C.R.
Original r. 13 8 o.f the Bombay Civil Services Classification and
Recruitment Rules, 1939, was deleted and the following rule was
-substituted on May 22, 1957. The relevant part of the rule reads:
"138. The ministerial staff in the Secretariat and
attached offices is divided into two Divisions.
(a) Upper; and (b) Lower.
(i) Superintendents : Appointments shall be made
by promotion from among Senior Assistants.
(ii) Senior Assistants : Appointments shall be made
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by promotion from among J u,nior Assistants.
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(iii) Junior Assistants : Appointments shall be made
either:-
(a) by nomination on the results of a competitive
examination held by the Bombay Public
Service Commission, or
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(b) by promotion from among members of the
Lower Division.
Provided that ·not more than one out of every four
vacancies in the p~sts of Junior Assistants shall ordinarily
·be filled by promotion.
(2) To be eligible for appointment by nomination
.a candidate must :-
(i) hold a degree in Arts, law, science, Agriculture
or commerce
o.'. a recognised
University
or
possess an equivalent qualification;
(ii) have attained the age of 18 years; and
(iii) not have attained the age of 30 years in the case
of members of the Lower Division appointed on
the recomme,ndation of the commission and who
have graduaied while in service and in a,ny other
case 24 years on the first day of the month immediately following month in which the posts are
advertised by the Commission.
H. Lower Division
(b) Clerb,
clerk-typists,
typists:
Appointments
shall be made by nomination on the results of a competi-
·tive examination held by the Commission.
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M. D. SHUKLA v. GUJARAT (Shah, J.)
523
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Provided that suitable members of Class IV services
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who while in that service, have passed the Secondary
School Certificate Exai;nination or an examination recognised by Government as equivalent to that examination,
shall be eligible for appointment to the posts of clerks
by promotion.
(2) To be eligible for appointment by nomipation,
a candidate must :-
(i) have passed the secondary school certificate examination or an examination recognised by Government as equivalent to that examination;
(ii) have attained the age of 18 years; and
(iii) not have attained the age of 23 years on the first
day of the month immediately following the
. month in which the posts are advertised by the
Commission.
A candidate• for the post of clerk-typist or typist
must, also be able to type neatly and accurately at a
ininimum speed of 40 wor.ds per minute.
"
The High Court held that recruitment to the ministerial staff
in the Secretariat could only be by nomination or by promotion
from among members of-the Lower Division, nomination being on
the result o.f a competitive examination held by the Public Service
Commission and promotion being from the subordinate staff. Jn
view of this rule, according to the High Court, it was inot open to
the State Government to adopt any other method of recruitment
of the members of the ministerial staff.
Counsel for the appellants contended that r. 138 only dealt with
the existing servants anc! did not prevent any additional members
from being amalgamated in the ministerial staff in the Secretariat.
He also contended that the recruitment did not amount to admission of an officer for the first time in the service. It is unnecessary
for the purpose of this appeal to consider these arguments. Assuming that r. 138 requires the State to follow a certain method for
recruitment to the ministerial service, that rule made under Art. 309
of the Constitution cannot take away the statutory right vested in
the personnel of the former Saurashtra and Kutch States which they
acquired under the States Reorganisation Act, 1956, to hold posts
in the new State which were equivalent and on terms which were
not, unless the previous approval of the Central Government was
524
. SUPREME COURT REPORTS
[1970] 3 S.c.R.
obtained, disadvantageous.
Since the arrangement which is made
by the Government of the State of Gujarat must be regarded as
provisional and to enure so long as the Central Government does
not make a final decision, it is not open to the officers of the Secretariat to challenge the authority of the Govemment of Gujarat
either to transfer officers from the Districts and to post and l!SSi~
them duties in the Secretariat or to fix their pay and senionty
among the officers in the Secretariat perfonning ministerial duties.
The appeal .must therefore be allowed and the order passed by
the High Court must be set aside. The petition filed by the respondents Nos. 2 to 148 will stand dismissed.
There will be no order
as to costs throughout.
G.C.
Appeal allowed.
A
B