PETITIONER:
P. CHITHARANJA MENON & ORS.
Vs.
RESPONDENT:
A. BALAKRISHNAN & ORS
DATE OF JUDGMENT25/04/1977
BENCH:
KAILASAM, P.S.
BEG, M. HAMEEDULLAH (CJ)
GUPTA, A.C.
CITATION:
1977 AIR 1720 1977 SCR (3) 687
1977 SCC (3) 255
ACT
Service matter--Promotions made in 1962--Writ petitions
filed in 1972--If could be entertained.
HEADNOTE
On May 15, 1961 the State Government passed orders (Ex.
PI) that all Panchayat Officers functioning under the
Travancore Cochin Panchayats Act, 1950 and Panchayat Execu-
tive Officers functioning under the Madras Village Pan-
chayats Act, 1951 as on December 31, 1961 who continue to
hold their appointments when the Kerala Panchayat Act, 1960
came into force would be absorbed as Panchayat Executive
Officers under the new Panchayats. The order also provided
that the staff of the Malabar District Board shall be ab-
sorbed as Panchayat Executive Officers in suitable grades.
On the recommendation of the State Public Service Com-
mission the State Government appointed 17 Panchayat Officers
in a higher grade by an order dated December 28, 1961
(Ex. P8) and the officer joined their posts between Decem-
ber 30, 1961 and January 2, 1962. To fill up the resulting
vacancies 17 of this Panchayat Executive Officers who were
in Grade II (respondents 3 to 18) were appointed. The
appellants were appointed as Executive Officers on the
Grade I, as and from January 1, 1962. The respondents’
representation to the Government that they should
be appointed with effect from December 28, 1961, that is,
the date on which the public Service Commission communi-
cated their appointment was rejected by the State Government
(Ex. P10) on the ground that the vacancies arose only on the
dates stated in that order commencing from December 30, 1961
and ending with January 2, 1962 and that the appointments
can only be on the occurrence of the vacancies. In a
petition under Art. 226 of the Constitution the High Court
directed that fresh lists be prepared.
Allowing the appeal,
HELD: The respondents are not entitled to the reliefs prayed
for by them in the writ petitions. [691 F]
The appellants were promoted to a higher post before the
respondents were integrated into the Government service.on
January 1, 1962. Throughout, the appellants have been
treated as occupying a higher post and respondents much
lower post. Though the promotion of the appellants was
before January 1, 1962 and was confirmed by various orders
of the Government the respondents did not choose to chal-
lenge the orders till 1972. [689 G]
There is no ground for challenging Ex. P10 order. It
refers to the G.O. of February 13, 1962 by which 16 respond-
ents in the writ petition were promoted as Executive Offi-
cers Grade I on the advice of the State Public Service
Commission. Their promotion having been ordered on February
13, 1962, without challenging that order a subsequent
order which determined the date of their commencement of
service cannot be challenged. [689 E-F]
There is no merit in the respondents’ contention that if
the vacancies in which the appellants and other Panchayat
Executive Officers were absorbed arose after January 1,
1962 the respondents would be entitled to be integrated
along with the Panchayat Executive Officers and since they
were drawing the same pay they ought to have been given an
equal ranking. The appointments of the appellants and other
Panchayat Executive Officers were made before December
31, 1961 and as the integration was to take effect from
January 1
688
1962 they cannot have any grievance. Further, the respond-
ents were not equated with the appellants and other Pan-
chayat Executive Officers when they were integrated from the
District Board Service. [690 F-G]
JUDGMENT
CIVIL APPELLATE JURISDICTION: C.A. No. 1547 of 1975.
(Appeal by Special Leave from the Judgment and Order
dated the 24-1-1974 of the Kerala High Court in O.P. No.
5566/72)
Y.S. Chitale, A. S. Nambiar, for the appellant.
K, T. Harindranath, K.R. Nambiar, for respondents Nos.
1 3 and 4.
T.S. Krishnamoorthy Iyer, N. Sudhakaran, for respond-
ents Nos. 5 & 6.
The Judgment of the Court was delivered by
KAILASAM, J.This appeal is by special leave granted by
this Court against the judgment of the High Court of Kerala
in O.P. No. 5566 of 1972 by respondents 4 to 8 and 13 before
the High Court.
The respondents herein filed the writ petition for the
issue of the Writ of Certiorari calling for records relating
to Ex. P-10, GO Rt. No. 3386/69/DD dated 23rd October,
1969, Ex. P12 and Ex. P15 and quash the same and to issue a
writ of mandamus directing the respondents 1 and 2 who
are the State of Kerala represented by the Chief Secretary,
Government of Kerala, and the Director of Panchayats to
forbear the implementation of Ex. P12 and further direct
them to implement Ex. P-8 grading-3 list or in the, alterna-
tive to issue a writ of mandamus directing the State of
Kerala to consider and dispose of Ex. P13 and similar repre-
sentations by respondents 3 and 4 on merits. It was also
prayed that a writ of certiorari quashing Ex. P17 in so far
as it related to the petitioners and respondents 3 to 18 in
the writ petition be issued and also to issue a writ of
mandamus compelling the respondents 1 and 2, State of Kerala
and the Director of Panchayats, to assign the writ petition-
ers the appropriate ranks in the cadre of Executive Officers
in the Panchayat Services. The High Court allowed the writ
petition and set aside the list Ex. P17, the order Ex. P12
and the order Ex. P15 dismissing the appeal petition Ex.
P14and directed that a fresh list be prepared in accordance
with the principles laid down in Ex. P16 in the light of
the judgment of the High Court. Aggrieved by the decision
of the High Court the appellants have preferred this appeal.
The writ petition was contested by 18 respondents.
Respondents 3 to 10 were Panchayat executive officers of the
Malabar area functioning under the Madras Village Panchayat
Act, 1951, on 31st December, 1961. Respondents 11 to 18
were Panchayat Officers functioning as such on 31st Decem-
ber, 1961 under the Travancore Cochin Panchayats Act, 1950.
The Kerala Panchayats Act, 1960, Act 32 of 1960 received the
assent of the Governor on 8th December, 1960, and was pub-
lished in Kerala Gazette Extraordinary No. 119 dated 9th
December, 1960. It is common ground that the respondents
became Government servants on and from 1st January, 1962.
689
On 15th May, 1961, under Ex. P1 the Government passed an
order that all Panchayat Officers/executive officers who
continue to hold their appointments at the time when the
Act came into force will De absorbed as Panchayat executive
officers in the new Panchayats. The same order provided
that the staff of the Malabar District Board shall be ab-
sorbed as Panchayat executive officers in suitable grades
according to their qualifications, grades and suitability.
In December, 1961, 17 Panchayat officers were to be
appointed on a scale of pay higher than the scale applicable
to the Panchayat executive officers. The Public Service
Commission selected 17 Panchayat executive officers who
were on the scale of pay Rs. 80-150 and drew up a list on
27th December, 1961. They were appointed as Panchayat
Inspectors under Ex. P8 on 28th December, 1961. To fill up
these vacancies 17 of the Panchayat executive officers who
were in Grade H on the scale of pay Rs. 40-120, the respond-
ents 3 to 18 were appointed. The 5 appellants before us
were appointed as executive officers on the grade I Rs. 80-
250 as and from 1st January, 1962.
The respondents who were the petitioners in the writ
petition were integrated in the service. The Government
passed orders laying down the principles of integration of
the District Board employees and the Panchayat executive
officers and Panchayat Officers. The impugned orders under
the writ petition are Ex. P10, Ex. PI2 and Ex. P15. It is
also prayed that Ex. P17 may be quashed. The Government in
Ex. P10 came to the conclusion that the vacancies on the
advice of the Public Service Commission and the appointment
of those that had been advised on 28th December. 1961, arose
only on the dates enumerated in the order Ex. P10 com-
mencing from 30th December, 1961, and ending with 2nd Janu-
ary, 1962 and that the appointment can only be on occurrence
of the vacancies. We do not see on what basis Ex. P10
could be challenged. Ex. P10 refers to G.O. MS No. 93/62
dated 13th February, 1962. By the G.O. of 1962, 16 respond-
ents in the writ petition were promoted as executive offi-
cers Grade I on the advice of the Public Service Commission.
The promotion of the respondents in the writ petition having
been ordered as early as 13th February, 1962, without chal-
lenging that order a subsequent order which determined the
date of their commencement service cannot be challenged. In
fact, the respondents were appointed to the higher posts on
28th December, 1961, and they took charge on 30th December,
1961, 31st December, 1961, 1st January, 1962 and 2nd Janu-
ary, 1962. The respondents in this petition were integrated
into the service only on 1st January, 1962. Their position
in the service was to be determined by the Government later.
If the respondents were aggrieved at the posting to the
higher post of the present appellants and others they ought
to have even challenged promotion which was made on 1st
January, 1962. Not having questioned the legality of the
promotion or the G.O. of 1962 it is ’too late for them to
question the validity of the G.O. of 1969 filing a writ
petition in the year 1972.
Apart from this insurmountable objection even on merits
the respondents have no claim. The Government passed Ex. R1
dated 31st January, 1965, laying down the principles of
integration of the District
690
Board employees and the Panchayat executing officers and
Panchayat Officers. It provided that the integration must
be based on functional parity. Ex. P12 is a G.O. dated 5th
May, 1970- The G.O. refers to the earlier G. O. dated 13th
February, 1962, and 24th June, 1969, and states that the
names of the 17 executive officers, the appellants and
others, are given rank under executive officers Grade I as
on 6th January, 1962. The gradation list is P-17 dated 22nd
July, 1972. After referring to the earlier G. O. the
Director of Panchayats approved a final gradation list of
Executive Officers of Panchayats as on 6th January, 1962.
The appellants are ranked as 58, 59, 60, 61, 62 etc. The
respondents made representations against Ex. P12 but these
representations were not accepted and a list Ex. P8 was
drawn up. The respondents again objected to the list and
subsequently Ex. P12 was prepared. Objections(P14) were
raised to Ex. P12 but they were rejected by order Ex. P15
and final list Ex. P17 was published in accordance with the
suggestions made in Ex. P12.
The contention on behalf of the respondents is that the
order under Ex. P12 is against the position taken by the
Government in Ex. P10) and Pl0(a) and the Director had no
authority to prepare a list in contravention of Exs. P10 and
Pl0(a). Ex. P12 was challenged on the ground that it is not
in accordance with Ex. P-16 which settled the principles to
govern the integration. It was therefore submitted that Ex.
P12 and P17 must be quashed. Strong reliance was placed
on the order of the Government dated 15th May, 1961, which
while it provided that Panchayat Officers Executive Officers
who continue to hold their appointments at the time when the
Act comes into force will be absorbed as Panchayat Executive
Officers in the new Panchayats, secured the right of the
staff of the District Board by providing that the staff of
the Malabar District Board shall be absorbed as Panchayat
Executive Officers in suitable Grades according to their
qualifications, grades and suitability. On the basis of the
principle of integration above cited it was submitted that
if the vacancies in which the appellants and other Panchayat
Executive Officers were absorbed arose after 1st January,
1962, the respondents would be entitled to be integrated
along with the Panchayat Executive Officers and as they were
drawing the same pay they ought to have been given an equal
ranking. We have already pointed out that these appoint-
ments were made before 31st December, 1961, and as such
the respondents cannot have any claim. The appointments of
the appellants and other Panchayat Executive Officers were
made before 31st December, 1961, and as the integration was
to take effect from 1st January, 1962, they cannot have any
grievance. Further, it will be seen from 6.0. MS.97/67/A &
RDD dated 18th March, 1967, which refers to absorption of
various categories of staff of the defunct Malabar District
Board in the Department of Local Bodies, it is stated in
Paragraph 3 that while 9 U.D. Clerks will be equated to the
posts of Panchayat Executive Officers, 2nd Grade, 21 Lower
Division Clerks and 8 Revenue Inspectors and 4 clerical
attenders will be equated to the posts of the Panchayat
Executive Officers 3rd grade. It is stated that respond-
ents 1 to 4 come under this category and are only 3rd Grade
Executive Officers. It will thus be seen that the respond-
ents were not equated with the appellants and other Pan-
chayat Executive Officers when they were integrated from
the District Board service.
691
The persons similarly situated as the respondents herein
who were integrated from the District Board services filed
writ petitions before the High Court impleading the present
appellants challenging the gradation and failed in their
attempt. The earliest petition is in O.P. No. 1431 of
19’70. Justice Isaac who heard the petition observed that
the petitioners came in the integrated service as 3rd
Grade Executive -Officers and were promoted to 2nd Grade
with effect from 6th February, 1968, while respondents 3
to 10 (some of whom are appellants before us) have been
promoted as early as 16th February, 1962, as 1st grade
officers. The learned Judge further observed, "Even
ignoring this, respondents 3 to 10 were I Grade Executive
Officers from 16-2-1962, while the Petitioner has become
even II Grade Executive Officer only with effect from 6-2-
1966." As the petitioner before the learned Judge was
holding a post much inferior to the posts held by respond-
ents 3 to 10 from 1st February, 1962, onwards, he dismissed
the petition being devoid of any merit on 24th May, 1972..
Another writ petition No. O.P. No. 6423 filed by one of the
persons integrated from the District Board Services, against
the present appellants and others was also dismissed by
Justice Isaac on 27th June, 1973. A writ appeal filed
against the order of Justice Isaac in O.P. No- 1431 of 1970
was summarily dismissed by the Bench of the Kerala High
Court.
While the earlier judgments were all decided against the
respondents, the Kerala High Court in the judgment under
appeal took a different view. The decision under appeal
proceeds on the basis that a regrettable mistake crept into
the judgment in O.P. No. 1431 of 1970 and the earlier deci-
sion proceeded on the basis that there was a III Grade
mentioned in G.O. 814 dated 17th November, 1962. The High
Court was of the view that there was a III Grade under the
G.O. above referred to the earlier decision missed the fact
that these Grades were not applicable on 1st January, 1962.
Though G.O. 814 of 1962 was ,not placed before us we are not
sure whether there was any mistake in the earlier judgment
for the G.O. MS 97/67 dated 18th March, 1967, refers to
persons being transferred from the Malabar District Board
as Panchayat Executive Officers III Grade. Be that as it
may we are satisfied that the respondents are not entitled
to the reliefs prayed for by them in the writ petitions.
As the appellants were promoted to a higher post before the
respondents were integrated into the Government service on
1st January, 1962. Further throughout the appellants have
been treated as occupying a higher post and respondents
much lower post. Though the promotion of the appellants was
before 1st January, 1962, and was confirmed by various
orders of the Government the respondents herein did not
choose to challenge the orders till the year, 1974. In
the circumstances, we are satisfied that the order of the
Kerala High Court has to be set aside and the appeal is
allowed with costs.
P.B.R. Appeal allowed.
5--707SCI/77
692