Full Judgment Text
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PETITIONER:
UNION OF INDIA & ANR.
Vs.
RESPONDENT:
P.K. ROY & ORS.
DATE OF JUDGMENT:
09/11/1967
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
WANCHOO, K.N. (CJ)
BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION:
1968 AIR 850 1968 SCR (2) 186
CITATOR INFO :
RF 1971 SC 117 (10)
RF 1971 SC1753 (5)
RF 1972 SC 586 (7)
R 1973 SC 69 (37)
RF 1973 SC1260 (7)
R 1973 SC2102 (17)
F 1974 SC1502 (8)
R 1975 SC 929 (12)
RF 1976 SC 214 (9)
RF 1977 SC 161 (7,8)
R 1981 SC1990 (11)
R 1984 SC 273 (41)
ACT:
States Reorganisation Act (37 of 1956), s. 115(5)-Power
of Central Government to fix seniority of officers in re-
organised States Preliminary work done by State
Governments--If improper delegation.
Natural Justice-Application of rules--Depends on facts
of each case
HEADNOTE:
Respondents 1 to 13 were Assistant Engineers in the
State of Madhya Pradesh before it was reorganised under the
States Reorganisation Act. 1956. After the formation of the
new State of Madhya Pradesh, they continued to serve in the
new State along with officers taken over from the absorbed
States and regions, and, it became necessary to integrate
the service and to fix the inter se seniority of the
officers of the: integrated service. The Chief Secretaries
of the various States that were to be affected by the
reorganisation had evolved certain general principles that
should be observed with regard to. the integration work and
the Government of India informed the State Governments that
the work of integration of services should be dealt with by
the State Governments in the light of those principles.
Thereafter, the State Government published a provisional
gradation list of the department to which the respondents
belonged and notified, that any government servant
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feeling aggrieved was entitled to send his representation to
the Central Government. Representations were received from
respondents 1 to 4, 6 and 7 and some other officers. and
those representations were sent by the State Government to
the Central Government for being dealt with in consultation
with the Advisory Committee it had constituted for dealing
with the representations from officers affected by the
reorganisation. Since the State Government had prepared the
list on a basis different from that suggested by the Central
Government the latter directed that a revised list should be
prepared on the basis of the formula laid down by the
Central Government. Accordingly, the State Government sent
a second list prepared on the basis of that formula, and
the Central Government, in consultation with the Advisory
Committee, examined both the lists and the
representations of officers already received and decided
that the second gradation list should be approved subject
to certain modifications, and certain directions in the ease
of officers from the Mahakoshal region. 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, the State Government refixed the inter se
seniority of officers from the Mahakoshal region, and
thereafter, prepared the final gradation list and published
it.
The respondents thereupon filed a writ petition in the
High Court challenging the validity of the final gradation
list on two grounds: (1) the work of integration was
exclusively entrusted to the Central Government by s.
115(5) of the States Reorganisation Act and that the
gradation list as published was illegal and ultra virex
because, there improper delegation of its powers and duties
by the Central Govern-
187
ment 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 appeal to this Court.
Held: (1) Even on the assumption that the task of
integration was exclusively entrusted to the Central
Government, the High Court was in error in holding that
there was improper delegation of its statutory power by the
Central Government. [200G]
In the present case the steps taken by the Central
Government in the matter of integration did not amount to
any delegation of its essential statutory functions, because
it was the Central Government which laid down 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 by the State Government under the direction
and with the sanction of the Central Government. When the
Central Government intimated that the work of integration
should be left to the State Government what was 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 the
officers can be obtained and tabulated only by the States
concerned, and there is nothing in ss. 115 or 117 of the Act
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prohibiting the Central Government in any way, from taking
the, aid and assistance of the State Government in the
matter of effecting the integration of the services. The
principle delegates non protest delegate, cannot be held’ to
have been violated. if a statutory authority empowers a
delegate to undertake preparatory work and to take an
initial decision in matters entrusted to it but retains in
its own hands the power to approve or disapprove the
decision after has been taken. In such a case 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. [198E-H;
[99D-G]
Pradyat Kumar Bose v. The Hon’ble The Chief Justice of the
Calcutta High Court, [1955] 2 S.C.R. 1331. followed.
Board of Education v. Rice, [1911] A.C. 179, Local
Government Board v. Arlidge [1915] A.C. 120 and Fowler
(John) & Co. (Leeds) v. Duncan [1941] Ch. 450. referred to.
(2) The doctrine of natural justice cannot be imprisoned
within the strait-jacket of a rigid formula and its
application depends upon the nature of the jurisdiction
conferred on the administrative authority, upon the
character of the rights of the persons affected, the scheme
and policy of the statute and other relevant circumstances
disclosed in a particular case. In view of the special
circumstances of the present case the respondents were
entitled to a second opportunity to make a representation
with regard to (a) the inter se seniority list of the
assistant engineers of the Mahakoshal region prepared as per
the directions of the Central Government, and (b) the
combined final gradation list. As no such opportunity was
furnished, the final list, so far as the category
affected by the directions given by the Central
Government was ultra vires and illegal and that part of the
notification must be quashed. [202D-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 618 of
1966.
188
Appeal by special leave from the judgment and order
dated April 29, 1964- of the Madhya Pradesh High Court in
Misc. Petition No. 371 of 2962.
Niren De, Solicitor-General, V.A. Seyid Muhamad, R.N.
Sachthey, for R.H. Dhebar, for the appellants.
A. K. Sen, Rameshwar Nath and Mahinder Narain, for
respondents Nos. 1, 3, 6, 10, 12 and 13.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave,
from the judgment of the Madhya 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 lists 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 6, 1962 prepared by the State Government
under instructions from the Central Government with regard
to the integration of officers of the Engineering Department
was illegal and ultra vires and must be quashed by the grant
of a writ.
The said Act was enacted to provide for the
reorganisation of the States of India and for matters
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connected therewith and came into force with effect from
November 1, 1956. By s. 9 (1) of the said Act there was
formed a "new State" to be known as the State of Madhya
Pradesh comprising the following territories:
"(a) the territories of the existing State
of Madhya Pradesh, except the districts
mentioned in clause (e) of sub-section (1) of
section 8;
(b) the territories of the existing State
of Madhya Bharat, except Sunel tappa of
Bhanpura tahsil of Mandsaur 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 existing State
of Vindhya Pradesh;".
Respondents 1 to 13 were Assistant Engineers
in the erstwhile State of Madhya Pradesh. The
first four of them were, appointed as such on
probation from October 27, 1956 and the others
had been appointed as temporary Engineers.
The respondents continued to serve in the new
State and a new "Buildings, Roads and
189
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 se seniority as several
officers had been taken over into the
reconstituted branch. Section 115 of the said
Act provided as follows:
"115. Provisions relating to other services:
(1) Every person who immediately before
the appointed day is serving in connection
with the affairs of the Union under the
administrative control of the Lieutenant-
Governor or Chief Commissioner in any of the
existing States of Ajmer, Bhopal, Coorg, Kutch
and Vindhya Pradesh, or is serving 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 the
affairs of the successor State to that
existing State.
(2) Every person who immediately before the
appointed day is serving in connection with
the affairs of an existing State part of whose
territories is transferred to another State by
the provisions of Part H 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 successor
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State to which every person referred to in
sub-section (2) shall be finally allotted for
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
default of such agreement, as may be
determined 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 to--
(a) the division and integration of the
services among the new States and the States
of Andhra Pradesh and Madras; and
(b) the ensuring of fair and equitable
treatment to all persons affected by the
provisions of this section and the proper
consideration of any representations made by
such persons.
Section 116 provided for the continuance of
officers in the posts they previously held and
s. 117 empowered the Central Government to
give directions to the State Government in
respect of their integration.
Section 117 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 decisions 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 decided 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
representations from the officers affected by
reorganisation. With regard to the principle for
determining equation of posts and relative seniority the
following conclusions were reached at the conference of the
Chief Secretaries:
191
"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) the responsibilities and powers exercised
by the officer holding a post; the extent of
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territorial or other charge held or
responsibilities discharged;
(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
each other, and drawn from different States, the following
points should be taken into account :--
(i) Length of continuous service, whether
temporary or permanent, in a particular grade;
this should exclude periods for which an
appointment 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."
By 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 problems arising out of the allocation and
integration of the services. The. functions of the
Committee. were:
"(i) 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 and Madras, and
(ii) To make recommendations to the
Central Government with a view to ensure 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 Reorganisation and to consider
representations submitted by them."
192
As directed by the Central Government, the State
Government also appointed the necessary committees to
undertake the preliminary work of integration. On
September 12, 1959 a provisional gradation list of the
department to which the respondents belonged was published
by the State Government by notification No. 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 lists
were prepared, were set out. But there was a proviso to cl.
(2) of the preamble which said that "where a service or
cadre consists 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 respondents 1 to 4, 6 & 7. These representations
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
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decision by a letter dated November 11, 1959 to the
following effect:
"1. The State Government should publish the
final common gradation list in its official
gazette following the prescribed procedure;
2. The State Government will prefix to the
notification 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
Committee;
(e) that the decisions of the Central
Government were correctly incorporated in the
final common gradation list."
193
In their letter dated August 29, 1960 the Central Government
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 maintenance of inter se seniority. The State Government
complied with this direction. In their letter dated
September 16, 1961 the Central Government said that the
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 inter 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 the officers from
Bhopal region (Serial Nos. 60 to 70) should be rearranged as
per rankings given by the Union Public Service Commission.
(ii) In the case of officers from Mahakoshal region (Serial
Nos. 59 onwards) it was pointed out that the then State of
Madhya Pradesh had not passed orders fixing the ranking of
the said officers and hence the ranking should 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 of Mahakoshal region
was refixed by the State Government by its 1otter No.
1086/6216/XIX/E dated February 20. 1962. In the light of
this list the provisional gradation list was also revised.
As already directed by the Central Government in its letter
dated November 11, 1959, the State Government published the
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final gradation list with the preamble attached to it
stating that the final list was being published by the
Governor in exercise of powers conferred by the proviso to
Art. 309 of the Constitution and in accordance with the
decisions of the Government of India under the provisions of
s. 115(5) of 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 )
194
of the said Act but in contravention of that provision. It
was also alleged that in so far as the State Government, in
drawing up the final gradation list, followed a principle
different from the one followed in preparing the provisional
gradation list on the: basis of which representations were
invited, the State Government had in effect denied the right
of representation to the persons affected thereby. The writ
petition was allowed by the High Court which quashed the
notification dated April 6, 1962 (Annexure 1 to the writ
petition) publishing the final gradation list of the
establishment of "Buildings, Roads and Irrigation" in the
Public Works Department and further directed the Central
Government "to complete the work of the integration of the
services in the aforesaid Department in conformity with the
provisions of sub-s. (5) of s. 115 of the States
Reorganisation Act, 1956".
The first question to be considered in this appeal is
whether the High Court was right in taking the view’ that
the work of integration was exclusively entrusted to the
Central Government by s. 1 l 5 (5) of the said Act and that
the final gradation list published on April 6, 1962 was
illegal and ultra rites as the delegation of ’its powers and
duties by the. Central Government to the State Government in
regard to integration was not in accordance with law.
Under Art. 162 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 laws:
Provided that in any matter with respect
to which the Legislature of a State and
Parliament have power to make laws, the
executive power of the State shaft be subject
to, and limited by, the executive power
expressly conferred by this Constitution or by
any law made by Parliament upon the Union or
authorities thereof."
As regards the matters in respect of which the Legislature
of a State has the power to make laws, item 42 in List II of
the Seventh Schedule to the Constitution specifies "State
Public Services", and under the provisions of Art. 162, the
executive power of the State extends to State Public
Services. This power is, however, subject to the other
provisions of the Constitution. Article 309 states:
"Subject to the provisions of this
Constitution Acts of the appropriate
Legislature may regulate the recruitment, and
conditions of service of persons appointed, to
public services and posts in connection with
the affairs of the Union or of any State:
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195
Provided that it shall be competent for
the. President or such person as he may direct
in the case of services and posts 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
posts in connection with the affairs of the.
State, to make rules regulating the
recruitment, and the conditions of service of
persons appointed, to such services and posts
until provision in that behalf is made by or
under an Act of the appropriate Legislature
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 posts in connection with the
affairs of the State, to make. rules regulating the
recruitment and conditions of service of persons appointed
to such services and posts 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
Constitution states that Parliament may by law--(a) form a
new State by separation.n of territory from any State or by
uniting two or more States or parts. of States or by
uniting. any territory to. a part of any State; (b) increase
the area of any State; (c) diminish the area of any State;
(d) alter the boundaries of any State; (e) alter the name of
any State. 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 Parliament may deem necessary.
.................................................."
By virtue of the power under Art. 4 the said Act was.
enacted. On behalf of the appellants the Solicitor-General
put forward the argument that the Dower of integration is
not exclusively 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 11 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
that under s. 115(5) of the
196
said Act the Central Government was given, by necessary
implication, the exclusive power to integrate and the word
"allotment" in s. 115(3) & (4) carries with it the necessary
power of fusion and integration. 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) and
s. 115(5) of the said Act is correct. We shall assume in
favour of the respondents that s. 115 ( 3 ), s. 115(4) and
s..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
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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 ultra vires.
Generally speaking, the work of integration requires the
formulation of principles on which the work has to be
carried out, the actual preparation of preliminary gradation
lists in accordance with the principles so settled, the
publication of the lists together with the principles upon
which they have been compiled, the invitation of
representations by the persons affected 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 posts 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
advisory 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 inter se seniority of officers who had come into
the cadre from different regions. The list was published
and it was notified that any Government servant feeling
aggrieved by the provisional list was entitled to send his
representation to the Central Government. The principle upon
which the list was prepared was published and it was
notified that the principle was subject to any subsequent
modification at the direction of the Central Government.
Representations were thereafter received from officers
including respondents 1 to 4, 6 & 7. The representations
were sent to the Central Government to be dealt with in
consultation with the advisory committees that were
constituted. On a consideration of these representations
the Central Government directed the State Gov-
197
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 on the basis of the conventional
formula, viz., continuous service in the equated grade
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
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determined 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 certain 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 confirming 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
normal 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 probation or
as a confirmed officer.
198
appointed to substantive vacancies with effect
from the same date, the normal practice was to
arrange the names on the basis of length of
continuous service. Where a departure from
this principle was intended, specific orders
were issued or the names arranged in the
desired sequence in the confirmation orders
itself.
10. A rearrangement of the names of the
Bhopal and Mahakaushal officers in the manner
indicated above is a matter concerning the
respective parent State seniority lists.
However, a rearrangement of the names of these
officers would have repercussions on the ranks
of officers from other regions. It is,
therefore suggested that the entire matter may
be reviewed by the State Government in the
light of the position stated in the two
preceding paragraphs and the necessary changes
carried out in the Combined Gradation List."
In accordance with this direction the State Government
prepared the inter se seniority list of Mahakoshal officers
(Annexure R-14) dated February 20, 1962. On the basis of
this list the final gradation list was prepared by the State
Government and published on April 6, 1962.
In our opinion, the procedure adopted in this case does
not contravene the provisions of s. 115(5) of the said Act,
because it was the Central Government which laid down 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 by the State Government under
the direction and with the sanction of the Central
Government. It is manifest that there has been no
delegation by the Central Government of ,my of its essential
functions entrusted to it under the statute. It was pointed
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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 letter was that only the preliminary
work of preparation of the gradation lists on the principles
decided upon by the Central Government should be left to the
State Governments concerned. It is clear that such work
cannot be done by the Central Government itself since the
necessary information regarding the officers can be obtained
and tabulated only by the States concerned. It was also
pointed out by Mr. Asoke Sen that the preparation of the
provisional and the final 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 disputed that the provisional and the
final gradation lists were prepared by the State Government
on the principles laid down by the Central
199
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 principle of the maxim "delegates non protest delegare"
has therefore no application to the present case. The maxim
deals with the extent to which a statutory authority may
permit another to exercise a discretion entrusted by the
statute to itself. It is true that delegation in its
general sense does not imply a parting with statutory powers
by 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
"delegation" at all and the maxim "delegatus non potest
delegare" does not apply [See Fowler (John) & Co. (Leeds) v.
Duncan](1). In other words, if a statutory authority
empowers a delegate to undertake preparatory work and to
take an initial decision in matters entrusted to it but
retains in its own hands the power to approve or disapprove
the decision 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 has 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 rites and illegal.
Even on the assumption that the task of integration was
exclusively entrusted to the Central Government, we are 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 delegation 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 in
the matter of effecting the integration of the services. So
long as the act of ultimate integration is done with the
sanction and approval of the Central Government and so long
as the Central Government exercises general control over the
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activities of the State Government in the matter. it cannot
be head that there has been any violation of the principle
"delegatus non potest delegare". For instance, it was
observed by this Court in Pradvat Kumar Bose v. The Hon’ble
The Chief Justice of Calcutta High Court(2):
(1) [1941] Ch. 450. (2) [1955] 2 S,C.R. 1331. 1345..
200
"It is well-recognised that a statutory
functionary exercising such a power cannot be
said to have, delegated his functions merely
by deputing a responsible and competent
official to enquire and report. That is the
ordinary mode of exercise of any
administrative power. What cannot be delegated
except where the law specifically so.
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(1), 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 opportunity to correct or
contradict any relevant and prejudicial material". The same
principle was reiterated by Lord Chancellor in Local
Government Board v.Arlidge(2) in the following passage:
"My Lords, I 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. The result of its
enquiry must, as I have said, be taken, in the
absence of directions in the statute to the
contrary, to be intended to be reached by its
ordinary procedure. In the case of the Local
Government Board it is not doubtful what this
procedure is. The Minister at the head of the
Board is directly respOnsible to Parliament
like other Ministers. He is respOnsible not
only for what he him:self does but for all
that is done in his department. The volume of
work entrusted to him is very great and he
cannot do the great bulk of it himself. He is
expected to obtain his materials vicariously
through his officials, and he has discharged
his duty if he sees that they obtain these
materials for him properly. To try to extend
his duty beyond this and to insist that he and
other members of the Board should do
everything personally would be to impair his
efficiency. Unlike a Judge in a Court he is
not only at liberty but is compelled to rely
on the assistance of his staff."
We accordingly reject the argument of Mr. Asoke Sen on
this aspect of the case and hold that the High Court was in
error in holding that there was an improper delegation of
its’ statutory power by the Central Government under s.
115(5) of the said Act.
We proceed to consider the next contention raised on behalf
the respondents that in any event they should have been
given
(1) [1911] A.C. 179, 182. (2) [1915] A.C. 120, 133.
201
a second opportunity to make a representation regarding: (1)
inter se seniority list of the Assistant Engineers of the
former Mahakoshal region prepared on February 20, 1962,
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Annexure R-14, and (2) the final inter se seniority list
published on April 6, 1962. With regard to the inter se
seniority list it was pointed out by Mr. Asoke Sen that in
paragraphs 9 and 10 of its letter dated September 16, 1961,
Annexure R-7, the Central Government noticed that no formal
orders were issued by the State of Madhya Pradesh prior to
October 31, 1956 fixing the rank of the Mahakoshal officers
from serial No. 59 onwards. It was customary in the old
State of Madhya Pradesh that the Government issued orders
regarding the rank of the officers while making a
notification confirming the officers. It was pointed out
that if the present rank in the combined gradation list was
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 normal practice adopted in such cases would appear to be
to arrange the names of the officers in the order of
appointment to substantive vacancy, whether on probation or
as confirmed officer. It was suggested by the Central
Government that the entire, matter should be reviewed by the
State Government in the light of the procedure stated in
paragraphs 9 and 10 of the letter and necessary changes
should be carried out in the combined gradation list. In
view of the directions contained in this letter the State
Government prepared an inter se seniority list of the
Assistant Engineers of the Mahakoshal region in their letter
dated February 20, 1962. It is not disputed on behalf of
the respondents that this order of seniority was reflected
in the final gradation list published on April 6, 1962; but
the contention of the respondents is that no opportunity was
given to them to make a representation against the inter se
seniority list dated February 20, 1962, though Mr. Asoke Sen
conceded that he had no quarrel with the principles upon
which the list was prepared. Learned Counsel, however, said
that the principles were wrongly applied in particular cases
and the respondents should have been given an opportunity of
making a representation with regard to the inter se
seniority list dated February 20, 1962. With regard to the
final gradation list published on April 6, 1962 the
contention of Mr. Asoke Sen was that the basis upon which
the "assumed date" was given in column No. 6 was not set out
either in that notification or in the principle specified in
the preliminary gradation list. On this point the
Solicitor-General said that the final gradation list was
prepared and the "assumed date" in column No. 6 was inserted
on the principle of "kicking down". It was also pointed out
by the Solicitor-General that in the Conference of the Chief
Secretaries it had been agreed that in determining inter-
State seniority the principle to be taken into account was
length of
10 Sup. C.I./67--14
202
continuous service, whether temporary or permanent in a
particular grade. The argument was stressed that the
principle could be ,applied only on the basis of "kicking
down" and that principle was implicit in the preparation of
the final gradation list. We are, however, not quite sure
whether the Solicitor-General is right in his contention on
this point. We think that the final gradation list could
have been prepared on the basis of the principle agreed upon
in the conference of the Chief Secretaries both on the
method of "’kicking down" and the ’alternative method of
"kicking up". It iS nowhere stated either in the
preliminary gradation list or in the final gradation list
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that the principle of "kicking down" was adopt-
in preference to the alternative principle. It was
argued by Mr. Asoke Sen that in regard to both these matters
the respondents have a right of representation and the final
gradation list should have been published after giving them
further opportunity to make a representation. Normally
speaking, we should have thought that one opportunity for
making a representation against the preliminary list
published would have been sufficient to satisfy the
requirements of law. But the extent and application of the
doctrine of natural justice cannot be imprisoned within the
straitjacket of a rigid formula. The application of the
doctrine depends upon the nature of the jurisdiction
conferred on the administrative authority, upon the
character of the rights of the persons affected, the scheme
and policy of the statute and other relevant circumstances
disclosed in the particular case (See the decision of this
Court in Shri Bhagwan and Anr. v. Ram Chand and Anr.(1). In
view of the special circumstances of the present case we
think that the respondents were entitled to an opportunity
to make a representation with regard to the two points urged
by Mr. Asoke Sen before the final gradation list was
published. As no. such opportunity was furnished to the
respondents with regard to these two matters we hold that
the combined final’ gradation list dated April 6, 1962, so
far as category 6 is concerned, is ultra vires and illegal
and that part of the notification alone must be quashed by
grant of a writ in the nature of certiorari. The rest of
the notification of the State Government dated April 6, 1962
with regard to other categories will stand unaffected. So
far as category No. 6 is concerned, the Central Government
is directed to give an opportunity to the respondents to
make a representation in regard to the two points mentioned
in this paragraph and thereafter take steps to finalise and
publish the list in accordance with law.
We accordingly modify the order of the High Court and
allow this appeal to the extent indicated above. There will
be no order with regard to costs in this Court.
V.P.S. Appeal allowed in part.
(1) [1965] 3 S. C.R. 218, 222