PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
DR. R.D. NANJIAH AND ORS.
DATE OF JUDGMENT15/10/1976
BENCH:
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1977 AIR 161 1977 SCR (1) 827
1976 SCC (4) 412
ACT
States Re-organisation Act (37 of 1956) s. 115--Opportu-
nity to hear after final inter-State seniority list is
prepared after giving opportunity to aggrieved to make
representations against provisional list--If should be
given.
Final list, when may be set aside by Court.
HEADNOTE
(1 ) When a provisional inter-State seniority list is
prepared for integrating services after States re-organisa-
tion, there is a possibility of some mistakes occurring
about the facts of a case or in the .application of the
relevant statute or rules or executive directions governing
seniority. It would, therefore, be quite fair to give the
person affected an opportunity to be heard against the
proposed list before it is made final under 8. 115. State
Reorganisation Act, 1956, so that. any possible mistakes,
either in the facts relating to his case or in the law or
rule applied with regard to the proposed assignment of a
place to him in the seniority list may be rectified. But,
once he had that opportunity. it cannot be said that he
should have a further opportunity against even a final
seniority list, for then such a list would not really be
final but will only he provisional or preliminary. [830 C-D]
(2) But, even a final list, if it is prepared contrary
to the rules applicable or is vitiated on some ground show-
ing that a condition precedent to the finalisation of the
list is absent, or a particular decision is malafide or
arrived at on totally irrelevant or extraneous considera-
tions. such a final list could be declared invalid by the
Court. [830. G]
In the present case. the officer was not satisfied with
the position given to him the final seniority list. But,
since he had an opportunity Under the integration rules of
the State for filing objections against the preliminary
provisional list, he cannot urge that he should he heard
again alter the final list was prepared.[829 A]
He cannot claim to have a say against the final list on
the analogy of a second opportunity to show cause against a
proposed punishment in a departmental enquiry, because. no
element of punishment is involved in preparing either a
provisional or a final seniority list. [830 B]
He is not entitled to any relief because he had not made
out in his petition to the Court any of the grounds on which
a final list can be assailed. [831 G]
Union of India v.G.M. Shankariah & Ors. etc. (S.L.R.
1969 p. 1 ) (C As. Nos. 1439 & 1446 of 1967--decided on 16-
10-1968) explained.
Union of India & Anr. v P.K. Roy & Ors. [1968] 2 S.C.R.
186 @ 202 and Union of India v.G.R. Prabhavalkar & Ors.
A.I.R. 1973 SC 2102 at 2106, followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1744
of 1968.
(Appeal by Special Leave from the Judgment and Order
dated 14-6-1967 of the Mysore High Court in Writ Petition
No. 440/65).
Mrs. Shyamala Pappu and Girish Chandra, for the Appellant.
Narayana Nettar, for Respondents 4 and 5.
3 -- 1338SCI/76
828
The Judgment of the Court was delivered by
BEG, J.--The judgment under appeal after certificate of
fitness of the case under Article 133(1)(c) of the Constitu-
tion of India, is very short as it purports to follow the
ratio decidendi of Union of India v.G.M. Shankariah & Ors.
etc.,(1) where this Court had held upon a concession by the
Attorney General, that a list prepared under Section 115 of
the States Reorganisation Act, 1956, (hereinafter referred
to as ’the Act’), was provisional. Therefore, it was held
that the writ petition was premature as the final list of
officers on an integrated seniority list was still to be
prepared after hearing objections.
The High Court of Mysore seems to have been under the
misapprehension that the case now before us is also governed
by what was held by this Court in Shankariah’s case (supra)
with reference to an entirely different and provisional list
of Forest Officers. The case now before us pertains to
Animal Husbandry and Veterinary Services of the Mysore State
in which the petitioner, was given, in the final integration
list, a position to which he objected. Apparently, the
petitioner, whose date of birth is given as 28th June, 1915,
has retired. He is a respondent who has not appeared before
us, and, therefore, could not be heard by us. We have,
however, gone through his petition and the affidavit filed
in its support where, in paragraph 16, he states as fol-
lows:
"The Mysore State Civil Service Integra-
tion Rules 1960 provide for filing objections
only against the preliminary provisional
Inter-State Seniority List and do not provide
any provision for filing objections or appeal-
ing against the final Inter-State Seniority
List as per Annexure ’B’. Thus we have no
other legal remedies open to us for the re-
dressal of our grievances and the abridgement
of our fundamental rights guaranteed under the
Constitution of India, and, therefore, we are
forced to approach this Honble Court to invoke
the writ jurisdiction for the redressal."
It is apparent that the petitioner-re-
spondent was claiming relief against the final
Inter-State seniority list although he was
given due opportunity to object to the provi-
sional list. Mrs. Shyamala Pappu, who has
looked up the departmental records, informs us
that the petitioner was given ample opportu-
nity to file his objections to the preliminary
list.
Now, Shankariah’s case (supra) was con-
fined to an admission on behalf of the Central
Government that the list before the Court was
provisional so that the petitioners before the
Court on that occasion were to get opportuni-
ties of puting forward their objections before
the final list is prepared. In the case
before us, the petitioner admits that the
Mysore State Civil Services Integration Rules
provided for filing of objections against the
preliminary provisional Inter-State Seniori-
ty list. Presumably, he had that opportunity.
Otherwise, he would, no doubt have objected
that the rules had not been complied
(1) S.L.R. 1969 p.1 (C. As. Nos. 1439 & 1446
of 1967--decided on 16-10-1968).
829
with, which he did not do. His grievance
seemed to be that he was not heard after the
final list was prepared. We are unable to
appreciate. this line of attack upon the final
list.
We think that the concession in Shankari-
ah’s case (supra) was confined to the facts
of that particular ease. There the list was
provisional. The most that could be urged, in
the light of decisions of this Court, is that
a person whose seniority is to be determined
under Section 115 of the Act must be given. an
opportunity to object to the proposed assign-
ment of a place to him in the seniority list.
As already observed above, the petitioner had
ample opportunity to do that. Hence, the
principle recognised in Shankariah’s case
(supra) was not applicable to such a case.
The judgment of the Mysore High Court was,
in our opinion, based on an apparent misun-
derstanding of Shankariah’s case (supra) and
on a failure to appreciate the facts of the
case of the petitioner respondent which is now
before us. There was not reference whatsoever
to any facts of the case in the order of a few
lines by which the petitioner’s petition was
disposed of by the High Court on the errone-
ous assumption that it was governed by Shan-
kariah’s case (supra).
As the petitioner in the High Court, who is
the, respondent before us, was unrepresented,
Mrs. Shymala Pappu, appearing on behalf of
Union of India, very Conscientiously, took us
through Union of India & Anr. v.P.K. Roy &
Ors.(’1) from which, learned Counsel thought,
the following observations could perhaps be
cited on behalf of the petitioner-respondent
(at p. 202):
"it was argued by Mr. Ashoke Sen that
in regard to both these matters the respond-
ents have a right of representation and the
final gradation list should have been pub-
lished after giving them further oppor
tunity 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 require-
ments of law. But the extent and applicationof
the doctrine of natural justice cannot be
imprisoned within the straight-jacket 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 per-
sons 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 & Ant. [1965] 3 SCR 218,
222. 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. Ashoke Sen before the final
gradation list was published. As no such
opportunity was furnished to the respondents
with regard to these two matters
(1) (1968 S.C.R. 186at 202.
830
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".
We think that any claim to have a say against the final fist
prepared, on an analogy with the second opportunity which is
afforded to a person to be punished after arriving at a
decision on the facts of a departmental trial and proposal
to inflict a particular punishment upon him, is quite inap-
propriate. No element of punishment at all is involved in
preparing either a provisional or a final seniority list.
All that is done is that certain principles are applied in
the preparation of the list. These principles are generally
found in the rules or executive directions which are known
to or are capable of being found out by the persons affect-
ed. When a provisional seniority fist is prepared, there
is a possibility of some mistakes occurring about the facts
of a case or in the application of those rules. It would,
therefore, be quite fair to give a person affected an ’oppo-
rtunity to be heard against the proposed fist before it is
finalised so that any possible mistakes, either on facts
relating to his particular case or of law in applying the
rules governing seniority to those facts, may be rectified.
But, once he has had that opportunity, it cannot possibly be
said that he should have a further opportunity against even
a final seniority list. If he was to have that opportunity
the list would not really be final but only provisional or
preliminary. It will be obviously contradictory to hold it
to be a final list and yet declare it Subject to modifica-
tions on further objections. We are unable to find any rule
of natural justice having such a paralysing scope.
In P.K. Roy’s case (supra), the opportunity afforded was
to be given before the publication of the final list. It
was an opportunity to be given before the final list was to
be declared and published as a final list. A right to
representation was recognised as existing at time when the
list was still to be considered as not finalised presumably
because some mistakes had crept in due to want of heating on
two points. Evidently what was meant was that the
publication gave the list finality. In that particular
case, the fist had been prepared without due regard to the
particular important points which had to be considered
before finalisation.
What we have observed does not mean that, if a final
list is prepared contrary to the rules applicable or is
vitiated on some ground showing that a condition precedent
to the finalisation of the list is absent, it would still be
inviolable ,Dr sacrosanct. Even a list purporting to be
final can be vitiated by non-observance of conditions prece-
dent. In order to establish the invalidity of the final
list on some such grounds of invalidity, those grounds have
to be shown to exist. We find no such grounds in the ease
before us.
Learned Counsel for the Central Government had cited before
us Union of India v.G.R. Prabhavalkar & Ors. (1) where it
was held by this Court (at p. 2106):
(1) A.I.R. 1973’S.c. 2102 at 2106.
831
"In our opinion the contentions of the
learned Additional Solicitor General are well
founded. The Central Government, under Sec.
115 of the Act, has to determine the princi-
ples governing equation of posts and prepare a
common gradation list by integration of
services. To assist it in the task of inte-
gration of services and for a proper consid-
eration of representations, the Central Gov-
ernment is empowered to establish Advisory
Committees. The Central Government is bound to
ensure a fair and equitable treatment to
officers in the matter of integration of
services and preparation of gradation lists.
It has also to give a full and fair opportuni-
ty to the parties affected to make their
representations; and the Central Government
has also to ,give a proper consideration to
those representations. So long as the Central
Government has acted properly according to the
provisions of the Act, we are of the view that
a Court cannot go into the merits or otherwise
of equation of posts which is a matter within
the province of the Central Government".
It was also held there (at p. 2106):
"It is no doubt true that the Central
Government must have due regard to the princi-
ples enunciated by it in consultation with the
States for the purpose of equation Of posts.
It must not only give an opportunity to the
concerned officers to make representations,
but it must also give those representations a
proper consideration. It is not within the
province of the Courts to lay down what are in
the principles to be adopted for purposes of
equation. That falls within the purview of
the statute concerned and the authorities
charged with such duty. The power of the
Courts is only to see that an authority has
acted properly in accordance with the statute.
If that is established, the decision of the
authorities concerned will have to stand. If a
particular decision is mala fide or arrived at
on totally irrelevant and extraneous consider-
ations, such a decision can be interfered
with by Courts. In this case, no mala fides
are alleged."
We find that, as was the case of the
petitioner in Prabhavalkar’s case (supra), the
petitioner-respondent Dr. R.D. Nanjiah, and
others similarly placed respondents before us
have been unable to make out, in their
petitions, any grounds for interference with
the final list. We, therefore, allow this
appeal, and set aside the judgment and order
of the Mysore High Court. The parties will
bear their own costs.
V.P.S. Appeal
allowed.
832