Desai, C.J.

(1) This special civil application raises important questions of law relating to the construction of some of the provisions of the States Reorganisation Act, 1956. There has been a divergence of opinion between the State Government on the one hand and the Central Government on the other, and divergent views have been held at different times. The petitioners are persons employed in the subordinate secretariat service of the Government of the State of Gujarat. Prior to the reorganisation of the State of Bombay on 1st November 1956, they were employed in the subordinate secretariat service of the existing State of Bombay. They have prayed for the issue of a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to restrain the State of Gujarat, its agents and servants from implementing the resolution dated 1st April 1960,passed by the Government of the former State of Bombay where under an alteration had been made in the previous resolution dated 25th October 1957 passed by the Government of Bombay in connection with the equation of posts for the purpose of integrating the services of various personnel allotted in the State of Bombay on the reorganisation of the State of Bombay on 1st November 1956. They have also prayed for a declaration that the revised seniority list prepared in pursuance of the aforesaid resolution of 1st April 1960 was inoperative or that the same be quashed. They have also prayed that an appropriate writ, order or direction may be issued so that the seniority as determined under the resolution of the Government of Bombay, dated 25th October 1957 may not be disturbed. The first respondent to the petition is the State of Gujarat. Respondents 2 to141 are persons in the subordinate secretariat service of the State of Gujarat who were employed in the subordinate secretariat service of the State of Saurashtra prior to the reorganisation of the State of Bombay on 1st November 1956. As the questions involved in the petition related to the constructions of the provisions of the States Reorganisation Act, 1956 and the powers of the Central Government under some of its provisions, notice was given to the Attorney General who has intervened and addressed the Court and produced various documents relevant to the matter which have been tendered in evidence on behalf of respondents 4 to 141.

(2) The States Reorganisation Act, 1956, came into force on 31st August 1956. By reason of the provisions contained in the said Act, there were certain territories added to the State of Andhra and to the State of Madras. Under the provisions therein contained, several new Part A States were brought into existence, namely, the State of Kerala, the State of Mysore, the State of Bombay, the State of Madhya Pradesh, the State of Rajasthan and the State of Punjab. Under the provisions of the said Act, a new centrally administrative Part C State known as the Laccadive, Minicoy and Amindivi Islands was also brought into being. We are in the present position concerned with the new Part A State of Bombay brought into being by virtue of the provisions of Section 8 of the said Act. The said section provides as under:

8. (I) As from the appointed day, there shall be formed a new Part A State to be knows as the State of Bombay comprising of the following territories, namely:

(a) the territories of the existing State of Bombay, excluding :

(i) Bijapur, Dharwar and Kanara districts and Belgaum districts except Chandgad taluka, and

(ii) Abu Road taluka of Banaskantha district;

(b) Aurangabad,Parbhani, Bhir, and Osmanabad districts, Ahmadpur,Nilanga and Idgir talukas of Bidar district, Nanded district (except Bichokonda and Jukkal circles of Deglur taluk and Mudhoi Bhiana and Kuber circles of Mudhoi taluk)and Islapur circle Boath taluk, Kinwat taluk and Rajpura Taluk of Adilabad district, in the existing State of Hyderabad;

(c) Buldana, Akola Amravati, Yeotmal, Wardha, Nagpur, Bhandara and chanda districts in the existing State of Madhya Pradesh;

(d) The territories of the existing State of Saurashtra and

(e) The territories of the existing State of Kutch;

And thereupon the said territories shall cease to form part of the existing States of Bombay, Hyderabad, Madhya Pradesh, Saurashtra and Kutch respectively.

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By reason of the aforesaid provisions, all the territories of the existing Part B State of Saurashtra, all the territories of the existing centrally administered Part C State of Kutch, most of the territories of the pre-existing State of Bombay, part of the territories of the State of Hyderabad and part of the territories of the State of Madhya Pradesh, were brought together so as to constitute a new Part A State to be known as the State of Bombay. After dealing with various matters relating to representation in the legislatures, the High Courts, authorization of expenditure, apportionment of assets and liabilities of some of the States, apportionment of certain assets and liabilities of the Union, provisions as to certain corporations and inter-State agreements and arrangements, by Part X provisions have been made as regards the services which were in existence prior to the reorganisation of the States effected by the said Act. Section 114 of the said Act relates to all-India services. It is not necessary for the purpose of the present petition to make any reference thereto. Then comes section 115 containing provisions relating to other services in respect of whereof divergent views have been expressed and which has formed the bone of contention in the present petition. Section 115(1) runs as under:

115. (1) Every person who immediately before the appointed day serving in connection with the affairs of the Union of India the administrative control of 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 the any of the existing States of Mysore, Punjab, Patiala and East Punjab States of Union and Saurashtra shall, as from that day, be deemed to have allotted to serve in connection with the affairs of the successor State to the existing State".

The successor State to the States of Kutch and Saurashtra, having regard to the definition of the expression "Successor State" given in S.2 (b), would mean the new Part A State known as the State of Bombay. Under the provisions contained in Section 115(1) all persons who were serving in connection with the affairs of the Union of in the State of Kutch were allotted to serve in connection with the affairs of the newly formed State of Bombay. By virtue of these provisions all persons serving in connection with the affairs of the State of Saurashtra were allotted to serve in connection with the affairs of the newly formed State of Bombay. Section 115(2) provides as under: --

"(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 II shall, as from the 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".

Under the provisions contained in sub-section (2) of section 115, all persons who are serving in connection with the affairs of the previously existing State of Bombay came to be provisionally allotted to serve in connection with the affairs of the newly constituted State of Bombay except to the extent that the Central Government had, by general or special order, required some of them to serve provisionally in connection with the affairs of the successor State of Rajasthan or the successor State of Mysore. Under the aforesaid provisions, some of the persons serving in connection with the previously existing State of Hyderabad came to be provisionally allotted to the successor State of Bombay by reason of orders passed by the central Government. Under the aforesaid provisions, some of the persons who are serving in connection with the affairs of the previously existing State of Madya Pradesh came to be provisionally allotted by the Central Government to serve in connection with the affairs of the newly State of Bombay. As a result of the provisions contained in the sub-section (1) and (2) of section 115 persons who were serving in different States came to serve in connection with the affairs of the newly formed State of Bombay. Some of those persons, namely, those who were formerly serving in connection with the affairs of the State of Kutch and the State of Saurashtra came to be permanently allotted to serve in connection with the newly formed State of Bombay. Others were provisionally allotted to serve in connection with the affairs of the newly formed State of Bombay.

(4). Sub-section (3) of section 115 provides as under:

"(3) As soon as may be after the appointed day, the Central Government shall, by general or special order determine the successor State to which every person referred to in sub-section (3) 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".

We are informed by the learned Attorney General that the Central Government has passed orders of final allotment in exercise of the powers of conferred by the section in the year 1961.

(5) Then comes sub-section (4) of section 115, which provides as under : --

"(4) Every person who is finally allotted under 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 maybe agreed upon between the Government concerned, and in default of such agreement, as may be determined by the Central Government".

So far, the provision of section 115 have presented no difficulty and there is no dispute between the parties in connection with the same. Then follows sub-section (5) of section 115 in connection where with there is a wide divergence of opinion. That sub-section run as follows : --

"(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 representation made by such persons".

We shall discuss these provisions later on when considering the various arguments advanced in connection therewith - sub-section (6), which follows, provides as under -

"(6) The foregoing provisions of this section shall not apply in relation to any person to whom the provisions of section 114 apply".

Sub-section (7) runs as under :--

"(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union of India or any State.

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government".

There is a divergent opinion as regards what constitutes conditions of service within the meaning of this sub-section -

Section 116 contains provisions as regards the continuance of officers in the posts and provides as under : --

"116. (1) Every person who immediately before the appointed day is holding or discharging the duties of the any post of office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new Part A or Part C State shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in other existing State or now Part A State or Part C State in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government or, or other appropriate authority in such State, or by the Central Government or other appropriate authority in such Part C State, as the case may be.

(2) Nothing in this section shall be deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office".

Then follows section 117 which runs as under :--

"117. The Central Government may at any time before or after the appointed day give such direction to any State Government as may appear to it be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions".

(6) We shall now advert to the facts which are material for the purpose of understanding the controversy among the parties who are before us. Prior to the coming in to force of the States Reorganisation Act, 1956,the Central Government, with a view to reorganise properly the States which were contemplated to be brought into existence, convened a conference at New Delhi of the representatives of the Central Government and the States in the Southern and Western Regions viz, the then existing States of Andhra, Bombay, Madhya Pradesh, Madras, Hyderabad, Mysore Saurashtra, Coorg and Kutch. At that conference held on the 18th and the 19th May 1956 an agreement was arrived at inter alia under as shown by minutes of that conference: --

"12. It was agreed that in considering 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 territorial or other charge held or responsibilities discharged;

(iii) the minimum qualifications, if any,

(iv) the salary of the post.

14. It was agreed that in determining relative seniority as between two persons holding posts declared equivalent to each other, and drawn from different State, 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 arrangements;

(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.

The conference was of the opinion that the extent possible, provisional common gradations list should be prepared before the date of the change over.

14. It was agreed that the Inter-State Committee should go ahead with the work of division and integration of service personnel. In the interest of expedition, it was agreed that as afar as allocation of service personnel was concerned, the Inter-State Ministers Committee need not be troubled with the allocation of non-gazetted personnel. This work may be done by the official Committee".

On 29th May 1956, the Central Government in the Ministry of Home Affairs addressed a letter to various Governments stating that the aforesaid conference was held on an informal basis and that the decisions which were taken were not intended to be published or to be treated as indicating formal views of Government of India and that subject to the aforesaid qualification, the conclusions reached at the conference should in the opinion of the Central Government, facilitate the work of State Government as well as the Government of India giving effect to the scheme of reorganisation in accordance with time schedule which had been prescribed. On the 31st of August 1956, the States Reorganisation Act, 1956, came into force. Under the provision of the said Act, the appointed day, namely, he day on which the new reorganised States were come into existence, was the 1st of November 1956. On 23rd of October 1956,after the new Act came into force, the Central Government in the Ministry of Home Affairs, addressed letters of Chief Ministers of various Governments in which it was stated as under: --

"A question has been raised as to what would be the legal and constitutional position about the integration rules being framed in various States for integration of services brought over from different units in common cadres of the new or reorganised States. such integration will become effective as from the appointed day and will be deemed, subject to the powers of the Central Government under the States Reorganisation Act, to have been effected under the authority of the Government of the new State when it is formed. We have been advised that general rules providing for the integration of services may be adopted in the cases of all new State and also the reorganised States of Andhra Pradesh, Madras and West Bengal by means of Government orders under proviso to Article 309 as soon as practicable after 1st November 1956".

The attitude adopted by the Central Government as envisaged in this letter was that integration would be effected under the authority of the Government of the new States when they were formed subject to the powers of the Central Government under the States Reorganisation Act. After the newly constituted States came into being on 1st November 1956 a conference was convened by the Central Government of the representatives of the Central Government and the representatives of the States of Andhra Pradesh, Bombay, Bihar Kerala, Madhya Pradesh Mysore, Madras, Punjab, Rajasthan and West Bengal. The aforesaid conference was held on the 6th and 7th December 1956. A record of the discussion at the said conference has been exhibited as Exhibits No.1.Paragraph 13 of the record of the proceedings is as under : --

"At this stage a clarification was sought by the Bombay representative as to whether the principle of cadre-to-cadre integration suggested at the conference of Chief Secretaries of the Northern and Central Region last summer, was intended to be applied to other cases. The Madhya Pradesh representative asked whether different formulae in different cases on he same question was a desirable arrangement. It was explained on behalf of the Home Ministry that the intention was that equation of posts should be settled with reference to the general principles agreed to at the Conference of Chief Secretaries of the Southern and Western regions, but if in any case, (as for example in PEPSU and Punjab), the parties concerned were agreeable to the principle of cadre-to-cadre integration, there need be no objection to such a course being adopted. Also that it would not be in order to assume that there was necessarily a conflict between the two formulae. It was neither intended to recommend nor to impose the cadre-to-cadre principle".

The reference therein to the general principle agreed at the conference of Chief Secretaries of the Southern and Western regions is a reference to the general principles set out in paragraph 12 of the minutes of the earlier conference held on the 18th and 19th May 1956 which have been quoted in the earlier part of this judgment. In the record of the discussions held at the conference of December 1956,it is further stated as under : --

"The second point raised was whether it would be necessary for the State Government to obtain the prior approval of the Central Government before varying conditions of service of a employee to his disadvantage, or whether they could take necessary action, and leave it to the employee to represent the matter to the Central Government who might only then look into it. It was explained on behalf of the Home Ministry that section 115(7) of the States Reorganisation Act clearly provided for prior approval of the Central Government ad this statutory requirement had, therefore, to be met in every case. In respect of the specific items discussed at this Conference, the Home Ministry would be addressing the State Government shortly, communicating the decisions of the Central Government. Thereafter the State Government would be in a position to assume the prior approval of the Central Government in all cases in which they act in conformity with the such prior approval would be specifically required". It is further recorded that the general sense among the State representative was that in so far as the integration of brought over from the different units into common cadres of the new or reorganised State was concerned the matter should be left to be dealt with by the State Government themselves. The Chairman of the conference summed up the view of the State representatives as follows: --

(a) that the work of integration should be left entirely to the State Government and they should be free to determine the specific machinery for handling it; it should however be presumed that they would in such case set up a body with the regard to the need for inspiring necessary confidence amongst personnel drawn from different units and

(b) that the central Government should constitute committees only for attending to the representatives that might be made by service personnel affected by reorganisation.

It was agreed that where necessary machinery has not been set up already for attending to the integration work, action should be taken at an early date, and in all cases necessary information as to the action taken forwarded to the Central Government for their information".

We have set out above the extracts from the record of the discussion which took place at the conference, as the same will help in understanding the action subsequently taken. Copies of the record of discussion were forwarded by the Government of India in the Ministry of Home Affairs to various State Government under letter dated 20th December 1956 which is part of the Exhibit No.1.

(7) On 27th March1957, the Under Secretary to the Government of India in the Ministry of Home Affairs addressed a letter to the Chief Secretaries to the Governments of the States of Andhra Pradesh, Bombay, Kerala, Madras, Rajasthan, Madhya Pradesh, Mysore Punjab and West Bengal in connection with the subject of protection of service conditions to be afforded to the State service personnel. After referring to the provisions of sub-clause (7) of section 115 of the States Reorganisation Act, 1956,which lays down that the condition of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) and sub-section (2) of that would not be varied to his disadvantage except with the prior approval of the Central Government and after referring to the discussion that head taken place at the conferences held in the month of May, 1956 and in the month of December 1956, it is stated that after a careful consideration of the views expressed at those conferences, the Government of India had decided that the conditions of service applicable to personnel affected by the reorganisation immediately before the appointed day should be protected in the manner indicated therein. Then follows a reference to pay provident fund and dearness pay and how the same should be protected. It is stated that the decisions follow the conclusions reached at the December conference. Paragraph 6 of the said letter on which some reliance has been placed by some of the parties before us, runs as under: --

"In respect of such condition of service as have been specifically dealt with in the preceding paragraphs, it will be open to the State Governments to take action in accordance with the decisions conveyed therein and so long as the State Governments act in conformity with these decisions, they may assume the Central Governments approval in terms of the proviso to sub-section (7) of section 115 in the States Reorganisation Act. In all other cases involving conditions of service not specifically covered in the preceding paragraphs, it will be necessary for the State Government concerned to obtain the prior approval of the Central Government in terms of the above provisions before any action is taken to vary the previous conditions of service of an employee to his disadvantage. In the event of any doubt arising as to the intention of the Central Government about any of the points dealt with in this letter, State Government wold no doubt refer the matter to the Government of India for clarification".

Paragraph 7 of the said letter runs as follows: --

"7. I am directed to request that necessary action may be taken accordingly and copies of orders or rules, if any, issued by the State Government on this subject from time to time, endorsed to this Ministry for information".

On 21st of May 1957, the Government of the reorganised State of Bombay issued a press-note getting out therein the four factors which were required to be borne in mind in determining the equation of posts, the principles being the same as those laid down at the aforesaid conference of May 1956, namely : --

1. the nature of duties of a post;

2. the responsibilities and powers exercised by the officer holding a post and the extent of territorial or other charge held or responsibilities discharged;

3. the minimum qualifications, if any, prescribed for recruitment to the post; and

4. the salary of the post.

On 18th October 1957, the Governor of Bombay made the rules known as "The Allocated State Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957". It is stated in the resolution of the State framing the rules that the same was done "in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and with due regard to the proviso to sub-section (7) 115 of the State Reorganisation Act, 1956,and with an approval of the Government of India obtained thereunder where necessary". Section 1 of the said rules deals with the question of absorption. Rule 3 of the aforesaid rule provides as under :--

"3. An allocated Government servant belonging to a local cadre which is not reconstituted on account of reorganisation of States, who is deemed to have been appointed to a post under section 116 of the State Reorganisation Act, 1956, shall as on the 1st November 1956, be deemed to have been absorbed in that post.

Note. -In this Rule local cadre means a cadre other than an all State cadre. A cadre is said to be reconstituted if it includes posts in areas from more than one of the former States".

Rule 4 of the aforesaid rules as subsequently altered by another notification issued by the Government of Bombay on 27th November 1958 which runs as under :--

"4. (I) The appointing authority concerned shall as soon as it may be after the equivalent posts are declared by Government in respect of a Department, issue an order absorbing an allocated Government servant, other than the one covered by Rule 3 above, as on the 1st November 1956, and such absorption shall be in an equivalent post:

Provided that allocated Government servant may be absorbed in a lower post if an equivalent post is not available in the sanctioned establishment and if he -

(a) was the substantive holder of a corresponding permanent post in the former State but had been appointed substantively to that post by an order issued after the 1st October, 1955, and had not rendered continuous service (both officiating and substantive) in that post or a post on the same time-scale for a period of not less than three years immediately before the1st November, 1956, or

(b) while holding lien on any other permanent post, had not officiated in the corresponding or a post on the same time-scale in the former State continuously for a period of not less than three years immediately before the 1st November 1956,or

(c) was a temporary Government servant.

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(8) The expression "equivalent post" has been defined by rule 2 (b) as under: --

"2.In these Rules unless there is anything repugnant in the subject or context---

xx xx xx xx

xx xx xx xx

(c)

Equivalent post means (I) a post in the former State of Bombay, or (ii) any other post which may be declared as equivalent to a post, whether permanent or temporary, sanctioned by the Government of any of the former State of Madhya Pradesh, Hyderabad, Saurashtra and Kutch and held by an allocated Government servant immediately before the 1st November 1956 in permanent or officiating or temporary capacity and hereinafter referred to as the corresponding post in the former State.".

The rules as originally framed were forwarded to the Central Government by the Bombay State Government on 18th November 1957 along with the usual progress reports submitted by the Bombay State Government to the Central Government.

(9) On 25th October 1957, the Government of Bombay passed a resolution in terms following:-

"The question of equation of posts in the Departments of Secretariat has been considered by Government in accordance with the general principle which has been settled in the behalf. Government is now pleased to direct that for the purposes of the Allocated Government servants (Absorption, Seniority, Pay and Allowances) Rules, 1957 the posts in the Bombay state specified in column 4 of the attached statement of the pay scales shown in column 5 thereof should be deemed to be equivalent to the posts allocated from the former states of Madhya Pradesh, Hyderabad, Saurashtra and Kutch specified against them is column 2 of the said statement.

The pay scales specified in column 5 of the attached statement should be applicable to the posts specified in column 2 subject to then conditions, if any respectively mentioned against them in column6 of the statement.

* * * * * * * * * * * *

The statement, to the extent that it is relevant for the purpose of the present case, provides as under :--

(10) It appears that the Central Government subsequently sought clarification in respect of some of the rules contained in the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957, as a result whereof, the Bombay Government made some changes therein.

(11) On 11th December 1957, the Government of Bombay issued a circular for the information of the allocated Government servants setting out the general principles to be followed in determining the equation of posts which had been stated in the earlier press-note issued by the Government of Bombay on 21st May 1957. It appears that the Government of Bombay had invited appeals from the affected service personnel both against the general principles of integration as well as in connection with the orders passed whilst implementing the said principles. Several representations were received from the service personnel belonging to various services in connection with the orders passed by the State Government as aforesaid. A question had arisen as regards the time during which representations were to be made by the service personnel affected by the orders passed. On 11th of February 1959, the Deputy Secretary to the Government of Bombay addressed a letter to the Secretary to the Government of India, stating as under:---

"It is accordingly being provided by general instructions that all appeals should be preferred within three months of the date of the orders appealed from, and where such orders have already issued, within three months of the date on which such general instructions are issued".

It is further stated that the practice followed by the Bombay Government was to entertain appeals on all distinct matters as and when they arose, irrespective of the fact whether such distinct matters related to general principles or were specific in themselves.

(12) In the month of July, 1958, a representation was made by V.B.Amin and 30 other persons who were Junior Assistants of the Saurashtra Secretariat. On the 13th November 1958, the Bombay state Advisory Committee met to consider the matter. The Committee consisted of the Chairman of State Public Service Commission, as Chairman and a Deputy Secretary to the Government of India, Ministry of Home Affairs and a Deputy Secretary to the Government of Bombay, Political and Services Department, as members. The consideration of this representation was however deferred to the next meeting. The state Advisory Committee at its third meeting held on 2nd June 1959 considered the aforesaid representation and some other representations relating to the integration of Saurashtra Secretariat personnel. In dealing with the aforesaid resolution of the Government of Bombay dated 25th October 1957, the Committee stated as under:--

"Keeping in view the four main factors laid down by the Government of India for determining the equation of posts, it would appear that there were no posts in the former Bombay State with which the Saurashtra posts could be suitably equated. This does not however solve the problem of integration of services. The state Government has already decided to absorb those with over 5 years in the posts carrying corresponding designation with the consequential reduction of five years service for the purpose of seniority. While the Committee wold not recommend any modification of the state Governments decision in respect of such persons, the Committee feel there equating the others with the posts carrying lower designation would not be fair to these persons inasmuch as tow comparatively higher and lower categories of Saurashtra would stand equated with the same category in the former Bombay state. Considering that there were no posts in the former Bombay state with which the Saurashtra posts could be suitably equated, the Committee feel that a fair solution would be to continue such persons, namely, those with less than five years service as separate categories on the pay scales (Mofussil) applicable to them in the former Saurashtra state. The separate category of Superintendents with less than 5 years service may be considered for promotion to the post of Superintendent side by side with the Senior Assistants of Bombay and other areas provided that the first three out of every four vacancies occurring on or after the 1st November1956, should go to this category of Saurashtra superintendents and Junior Assistant of Saurashtra should be similarly considered for promotion in the vacancies in the cadre of senior Assistants and Junior Assistants vis--vis the Junior Assistants and clerks respectively from the former Bombay and other areas".

On 14th August 1959,the Chief Secretary to the Government of Bombay, Political and Services Department, addressed a letter to the Chairman of the state Advisory Committee, intimating to him that there commendations of the Committee in connection with the aforesaid representations were likely to have certain serious and embarrassing repercussions and that the state Government felt that the then existing equations of Saurashtra Secretariat posts were on the whole equitable and state that their modifications would create difficulties. He therefore requested the Chairman to move the Committee to reconsider the recommendations made. On 5th September, the Chairman of the state Advisory Committee intimated to the Chief Secretary to the Government of Bombay that a meeting of the members of the Advisory Committee was held on 29th August 1959for the purpose of reviewing the recommendations made by them but the Committee was not unanimous regarding the revised recommendations to be made and that they had decided that the views of the chairman and each of two members in connection with the matter should be forwarded separately to the Government of India. Notes were sent along with that letter which showed the different views held by the members of the Committee. On 22nd September 1959, the Government of India addressed a letter to the Chief Secretary to the Government of Bombay in connection with the representations made by V.B.Amin and30 other Junior Assistants of Saurashtra Secretariat, stating as under :--

"The Government of India have carefully considered the representations, the comments of the Government of Bombay thereon and the recommendations of the state advisory Committee. In their view the principles of equation adopted by the Government of Bombay and not only conflict with the general principles laid down on the basis of the unanimous decision of the Chief Secretaries Conference but also with orders announced by the Government of Bombay from time to time. The Government of India find that due regard has not been paid to the following criteria :

(1) Nature of a post ;

(2) The responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged;

(3) The minimum qualifications, if any, prescribed for recruitment to the post;

(4) Salary of the post.

Due regard has also not been given to the decision taken at the Conference held in June 1956 to the following effect :

It was also agreed after some decision that the higher or lower pay attached to a cadre would not by itself be regarded as providing a sufficient justification for refusing to confirm to other similar cadre.

It is further found that the equation of posts ordered by the Government of Bombay has resulted in unfair and inequitable treatment to the employees of former Saurashtra State. The Government of India are not able to approve of the basis of equation adopted by the Government of Bombay stipulating a qualifying service of 5 years to entitle a person to be equated with corresponding post in Bombay and that in cases were 5 years is not available equating such a post with a lower post. The principle adopted by the Government of Bombay is discriminatory and results in unfair treatment to certain categories of Government servants to the extent of making them lose periods of approved service for purposes of seniority. The Government of India, therefore, direct that these representations may once again be placed before the state Advisory Committee for reconsideration in the light of what has been stated above".

On 17th October 1959, a meeting of the Advisory Committee was held. The letter of the Government of India dated 22nd September 1959 was considered at that meeting. The Committee at that meeting decided to inform the Government of India that due regard had already been paid by the Committee both in their recommendations made at the meeting held on 22nd June 1959 in the revised recommendations subsequently made by them in respect of the posts in the Secretariat of the former state of Saurashtra, to the general criteria prescribed for integration of services. They also decided to inform the Government of India that the letter of the Government of India gave an impression that the arguments in the notes of the Committee had not been taken into consideration of the Government of India. They decided to send explanatory notes regarding the vies of the Committee. Three separate notes by the three members of the Committee were presented as it was not possible for the Committee to arrive at unanimous decision regarding recommendations to be made. The Chairman in his note stated that the observations of the Government of India that due regard had not been paid by the Committee to the criteria prescribed for determining the equations was not correct. In the said note it has been stated as under :--

"To take the criterion individually, the criterion regarding salary duly justified the equation ordered by the Government of Bombay. The pay scales of the grades in Saurashtra Secretariat are not superior to, and in fact they cannot be said to be as good as, those of the next grades in the Bombay Secretariat. It would not be correct to ignore this difference altogether. As regards the criterion of qualifications prescribed for recruitment to the posts, the criterion has no relevance in the present case, except for the posts of Junior Assistants there being direct recruitment only at the level of Junior Assistants, and the Committee did propose special treatment even of Junior Assistants from Saurashtra with less than five years service having due regard to this criterion. As regards responsibilities and powers exercised, these were distinctly superior in the cases of personnel from the old Bombay state inasmuch as they were better trained, being required to adhere strictly to a procedure evolved over several decades, had to deal with problems of a greater complexity and had to shoulder greater responsibility, the size of the state and the highly developed stage of its administration making impossible concentration of responsibility at the level of gazetted officers. As regards the duties, although these wold appear superficially to be identical, the developed stage of administration in Bombay and the size and complexity of the matters required to be dealt with made even these more onerous for he Bombay Secretariat personnel than their counterparts in Saurashtra Secretariat. Moreover, this criterion, is satisfied even with equations (other than those of Junior Assistants with less than five years service) ordered by the State Government since there is no difference of substance between the duties of a Senior Assistant and a Junior Assistant and not a material difference between those of Superintendent and a senior Assistant. There is indeed a difference between the duties of a Junior Assistant and a Clerk but the Committee have taken cognizance of this fact".

The Chairman in his note has denied that equation of posts ordered by the Government of Bombay had resulted in unfair and inequitable treatment to the employees of the former Saurashtra State. The Secretary to the Government of Bombay, Industries and Co-operation Department, who was a member of the State Advisory Committee, has in his note concurred with the views expressed by the Chairman except in the case of Junior Assistants with less than 5 years service. He did not think that designation to designation equation would be justified even in the case of Junior Assistant with less than 5 years service. In the note prepared by the Deputy Secretary to the Government of India, Ministry of Home, who was a member of the State Advisory Committee, it is stated that it was felt a the meeting of the State Advisory Committee held on 2nd June 1959 that equating some of the posts of Saurashtra Secretariat with those of he Bombay Secretariat carrying lower designations would not be fair to Saaurashtra personnel and it therefore recommended a via media namely, that persons of Saurashtra Secretariat having more than 5 years service in a particular category may be equated as proposed by the State Government but those who, on 31st October 1956 had put in 5 years service or less in a particular category should be kept as a separate category without equation, provided the first three out of every four vacancies occurring in the Bombay Secretariat after 31st October 1956 carrying similar designation did go to those persons. He has observed that the structure of the Saurashtra Secretariat (ministerial side) was just the same as of the former Bombay Secretariat and that he method of recruitment, basic educational qualifications, nature of duties and the chances of promotion were similar. After referring to the substantial difference in the relative pay scales he has stated that this factor would not justify equating he Saurashtra posts to Bombay posts which were one category lower. He suggested the following compromise formula. As regards those persons of the Saurashtra Secretariat who had put in over five years in a particular category on 31st October 1956, the State Governments orders may be maintained, i.e., the people being equated with posts carry8ng the same designations in the former Bombay Secretariat. Only their service in the category being reduced by five years or the purpose of seniority. As to other persons of the Saurashtra Secretariat those who had on31st October put in five years or less than in their particular categories could, for the purpose of seniority, be kept as separate categories immediately below all the persons of the Bombay Secretariat carrying similar designations.

(13) On 5th January 1960, the Chief Secretary to the Government of Bombay forwarded to the Secretary to the Government of India the minutes of the meeting of the State Advisory Committee held on 17th October 1959 together with the aforesaid Notes and the relevant documents with a request that the Government of India be moved to issue directions on the recommendations made by the State Advisory Committee. On 5th of February 1960, the Deputy Secretary to the Government of India addressed a letter to the Chief Secretary to the Government of Bombay stating as under:

"With reference to your letter No. SR/ADV 1159-C-2833-VI dated 5th January 1960, I am directed to say that the Government of India have considered the recommendations of the State Advisory Committee regarding the equation of posts in the Saurashtra Secretariat with those in the Bombay Secretariat and have decided that there should be cadre to cadre consideration a indicated below :



Bombay Saurashtra

Assistant Secretary. Assistant Secretary.

Senior Superintendent. Senior Superintendent.

Superintendent. Superintendent.

Senior Assistant. Senior Assistant.

Junior Assistant Junior Assistant.

Further, the inter se seniority should d be determined on the basis of the total length of continuous officiation in the equated cadre. Action may be taken accordingly to revise the equation of posts as determined by the State Government and to determine the seniority of the affected personnel.

(2) The Government of Indias decision on the individual representation are as indicated as below:

Name Designation/ Decision of the Government

Department of India

1.Shri. V.B. Junior The Government of India have decided that the Amin and Assistant post of Junior Assistant, Saurashtra should be 30 others equated with the post of Junior Assistant, Bombay and that inter se seniority should be determined on the basis of length of continuous service in the equated grade. The representation may, therefore, be accepted.

2. Shri C.N. Superintendent The Government of India have decided that the to Vasavada posts of Superintendent in Saurashtra should 28. and be equated with the post of Superintendent in others Bombay and that inter se seniority should be determined on the basis of length of continuous service. The representation may therefore be accepted.

29 Shri A.G. Senior The Government of India have decided that the to Buch and Assistants. post of Senior Assistant, Saurashtra should be 31 others equated with the post of Senior Assistant in Bombay and that inter se seniority should be determined on the length of continuous service in the equated grade. The representations may

therefore be accepted.

On 1st April 1960, the Government of Bombay passed the following order:

1. "Government is pleased to direct that for the existing entries at serial numbers 19, 30, 31 and 32, in the statement accompanying Government Resolution, Political and Services Department No. SR/INT-1057-VI, dated the 25th October 1957, the following entries should be substituted:



Sr.

No.

Designation of the corre-sponding post.

Pay scale of the corres-ponding post.(Rs.)

Designation of the equi-valent post.

Bombay of the equivalent post

Conditions subject to which the scale in col.5 is prescribed.

1

2

3

4

5

6

19.

First Grade Clerk.

200-8(-285 -EB-13-350

Superinten-dent.

320-20-440 -EB-20-500 -25-600.

30.

(i) Senior

Superinten-dent.

(ii) Junior Superinten-dent

(i) 290-20- 330. (Old Scale)

(ii) 180-10-220-15-280

,,

,,

,,

,,

31.

Sr.Assistant

125-7-174

Sr.Asst.

210-15-300

32.

Jr.Assistant.

75-3-105-5-120

Jr.Asst.

120-10-200 -EB-10-250

The absorption/seniority orders were issued by the Government of Bombay, giving effect to the aforesaid order.

(14) Before proceeding further with the matter, we may mention that on 11th November 1959, the Deputy Secretary to the Government of India had addressed letters to various State Governments laying down the procedure in connection with the publication of the final common gradation lists. In that letter, it is stated as follows :

"(I) As regards procedure for publishing Common Gradation Lists, the Government of agree that the State Government will publish the final common gradation lists in its Official Gazette, after following the procedure indicated here in:

(i) The State Government has to satisfy itself that the following steps have been taken before it decided to publish the Common Gradation Lists.

(a) that the Government of (Name of the State) effected the integration of services of ...... (name) Department/Establishment and prepared the provisional Common Gradation List in the accordance with the principles laid down by the Central Government;

(b) that the Government of ......(Name of the State) published in the Official Gazette if that State the said provisional Gradation Lists and afforded an opportunity to service personnel affected to represent to the Government of India under Section 115(5) of the States Reorganiosation Act, 1956;

(c) that the representations, if any, of officers affected had been decided in consultation with the Central Advisory Committee /State Advisory Committee as envisaged under section 115(5) of the States Reorganisation Act,1956;and

(d) that the above mentioned decisions have been correctly incorporated in the final Common Gradation Lists.

(ii) The State Government will prefix to the notification publishing final Common Gradation List a preamble (copy enclosed)".

The preamble as enclosed runs as under ;--

309 of the Constitution and in accordance with the decisions of the Government of India under the provisions of Section 115(5) of the States Reorganization Act, 1956 (Central Act 37 of 1956), the Government of (name of State) is pleased to publish the final gradation list of the (name) Establishment/Department shall be in force retrospectively from the 1st November, 1956".

On 14th January 1960, the Deputy Secretary to the Government of Bombay addressed a letter to the Secretary to the Government of India, Ministry of Home Affairs, in which it was stated in connection with the preamble to the gradation list as under :

"In regard to the preamble to the gradation list suggested by the Government of India, I am to state that the lists are prepared in pursuance of the relevant provisions of the Allocated Government Servants (Absorption , Seniority, Pay and Allowances ) Rules, 1957,which have been framed by the State Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Therefore, the State Government is of the view that instead of referring to the said Article 309 in the preamble it would be more appropriate to make a reference to the relevant provisions of the rules framed by it.

Incidentally, it appears that provision for issue of directions by the Government of India exists only in Section 117 of the States Reorganisation Act, 1956, and not in sub-section (5) of Section 115 thereof mentioned by the Government of India in the suggested preamble. I am to request that the necessity for a reference to the said sub-section (5) of Section 115 may kindly be clarified for the information of the State Government ".

On 12th March 1960, the Government of India in reply stated that subject to the specific obligation cast on the Central Government under subsections (2) to (5) and the proviso to sub-s. (7) Of Section 115 of the States Reorganisation Act, persons in the State service conditions to belong to the State service and the directions, if any, given under section 117 of that Act have to be complied with only by the State Government. It is further stated in the letter as follows :

In conforming the gradation list, as modified if necessary, with reference to the decisions of the Central Government on representations made by any of the affected persons, the State Government may be said to regulate the conditions of service of their servants. Consequently there seems to be no objection in invoking the proviso to Article 309 in the preamble, indicating at the same time and the final list is in accordance with the decisions of the Government of India under section 115(5) of the States Reorganisation Act, although no rules as such is framed for the purpose".

(15) On 13th March 1961, the Mysore High Court delivered its judgment in the case of M.A.Jaleeel V. State of Mysore, reported that in AIR 1961 Mys. 210, holding that the Central Government was constituted the sole authority for the purpose of integration of services in the newly reorganised States. Thereafter on 11th October 1961, the Deputy Secretary to the Government of India in the Ministry of Home Affairs addressed letters to the Chief Secretaries to various State Governments stating as under :

"A question has been raised whether, in respect of any provisional common gradation lists where no appeals were preferred by any of the employees against the said common gradation lists, the approval of the Central Government can be presumed and the final gradation lists published by the State Government with the preamble suggested by the Government of India in their letter No. 9/10/59-SR (S), dated 11th November 1959, addressed to the Government of Madhya Pradesh and copies endorsed to the State Government or whether the lists should be formally sent to the Government of India for approval before publication. The matter has been considered and it has been decided as Section 115(5) of the States Reorganisation Act, 1956 confer powers in regard to integration of services exclusively on the Central Government, it will be necessary for the State Government to obtain the specific approval of the Central Government even in respect of provisional gradation lists in regard to which no representation have been received before publishing them as final gradation lists. I am directed to request that action may kindly be taken accordingly".

(16) On 25th April 1960, the Bombay Reorganization Act came into force. Under the provisions of that Act on 1st May 1960, the State of Gujarat was carved out of the territories of the State of Bombay and the residuary States of Bombay came to be known as the State of Maharashtra. Under the provisions of Section 81(1) of the said Act, the Central Government passed an order requiring the petitioners and other persons to serve provisionally in connection with the affairs of the State of Gujarat. On 14th July 1960, a representation was made to the Government of India by some of the persons affected by the order of 1st of April 1960 passed by the Government of Bombay as aforesaid. On 14th November 1960, the Deputy Secretary to the Government of Gujarat that the Government of India has considered the representation against cadre-to-cadre integration of posts in Bombay and Saurashtras secretaries and that after careful consideration of the connections, put forth by the representations, the decisions of the Government of India regarding cadre-to-cadre integration of posts in Bombay and Saurashtra Secretariats was communicated to the State Government and that further representations of various persons including the first petitioner had been rejected and that may be informed accordingly. On 4th of December, 1960 the petitioners filed the present petition.

(17) Diverse arguments have been advanced in connection with the right, power and authority of the State Government and of the Central Government in connection with the integration of the services having regard to the provisions of the Constitution and of the States Reorganisation Act, 1956. On the other hand it has been urged that the sole and exclusive power to integrate the services in a newly formed State vests in the Government of such newly formed State whilst, on the other hand, it has been contended that the sole authority to integrate the services is the Central Government and that it fails exclusively within the purview of the Central Government to integrate the services. In the alternative, it is urged that even if the power to integrate the services vests in the State Government, the Central Government has also to perform certain functions to connection with the integration of services, that the Central Government has the authority to give directions to the State Government in connection with the division and integration of the services and for ensuring of fair and equitable treatment to all persons who have been allocated to serve in connection with the affairs of any newly formed State and that the State Government is under an obligation to comply with such directions. Before considering the various contentions urged in connection with this matter, it would not be out of place to refer to some of the provisions of the Constitution of India, it is provided as follows :

"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 shall be subject to and limited by the executive power expressly conferred by this Constitution or by any law made by this Constitution or by any law made by the Parliament upon the Union or authorities thereof".

We are not concerned with the proviso in the present case. As regards the matters in respect to which the Legislature of a State has the power to make laws, item 42 in List II of the Seventh Schedule to the Constitution of India specifies "State Public Services". Under the provisions of this Article, the executive power of the State extends to State Public Services. This power however is subject to the other provisions contained in the Constitution. The power of integrating public services and service personnel of a State falls within the domain of the State concerned and the executive power of the State extends to it. Article 309 of the Constitution provides as under:

"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:

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 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 services of persons appointed to such services and posts until provision in that behalf is made by or under an Act of an appropriate Legislature. The power conferred under Article 309 is also subject to the other provisions of the Constitution. Article 2 of the Constitution provides that Parliament may by law admit into the Union or establish, new States on such conditions and terms as it thinks fit. Article 3 of the Constitution provides that Parliament may by law ---(a) form a new State by separation of territory from any State or by uniting two or more States or parts 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 of the Constitution provides as under:

"4. (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 aforesaid provisions, Parliament is by law empowered to reorganise States. Parliament is further empowered, when making any law for such reorganisation, to provide for "supplemental, incidental and consequential provisions". When the territories of existing States are divided and where the territories of different States are integrated so as to form different new States, Parliament would have authority to make provisions relating to the divisions of services off the various States whose territories are in the melting pot. Parliament would equally have the authority to make provisions relating to the integration of the services of persons allotted to serve in connection with the affairs of the newly formed States. Parliament having that power, has enacted the States Reorganisation Act, 1956. The provisions of that Act have not been challenged before us on the ground of any constitutional invalidity. The questions that arise for our consideration relate to the interpretation of the provisions of the aforesaid Act, having regard to the provisions contained in the Constitution. As we have noted earlier, the power of integration of the public services of a State falls within the executive power of the State and the only question that we would have to consider is the extent to which Parliament has framed laws in the exercise of its undoubted powers under Articles 2, 3 and 4 of the Constitution affecting the same.

(18) That takes us to the provisions contained in Section 115 and Section 117 of the States Reorganisation Act, 1956. Sub-section (5) of Section 115 lays down that 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". This sub-section provides for the rendering of assistance to the Central Government in respect of certain matters, the matters being those specified in item (a) and (b). The Central Government would require assistance in respect of any matter only if it has some function to perform in connection therewith. We will have to consider the nature of the function which the Central Government has to perform in connection with the matters specified in items (a) and (b).

(19) We will first consider the question relating to the division of the services, being one of the matters referred to in item (a). By Section 115(1), every person who is serving in connection with the affairs of the Union in the States therein mentioned, or is serving in connection with the affairs of the States therein mentioned has been allotted to serve in connection with the affairs of the successor State to the existing State. No question of the division of such service personnel arises as they have been all allotted under the section itself. Under the provisions contained in Section 115(2) the Central Government is empowered by a general or specific order, to direct certain persons to serve provisionally in connection with the affairs of certain States. In the absence of any action taken by the Central Government under the provisions of sub-section (2) the service personnel therein mentioned would get provisionally allotted to serve in connection with the affairs of the principal successor State. Under Section 115(3), the Central Government is to determine the successor State to which every person referred to in sub-section (2) shall be finally allotted for service. Considering the provisions of sub-sections (1), (2) and (3), it is clear that division of services has been done partly by the Legislature and is left partly to the Central Government.

(20) We shall now deal with the matter pertaining to the integration of the services. It is strongly urged by the learned Attorney General that the Central Government has been constituted the sole and exclusive authority to integrate the services. He has urged that it is provided by the section that in connection with the integration of services, the Central Government can establish one or more advisory committees for the purpose of assisting it in regard thereto and that it can only receive assistance in connection with a matter in connection were with duties and obligations are imposed on it. He says that the power to integrate services must of necessity be held to vest solely and exclusively in the Central Government, having regard to the language used in this sub-section. According to him such result must by necessary implication flow from the language used. There are various difficulties in accepting the aforesaid submission. It has first to be noticed in this connection that once a new State is consisted, that State would, under the provisions contained in Article 162 of the Constitution, have the power to integrate the services of persons belonging to State public services. That power, no doubt, is subject to the other provisions contained in the Constitution. We have to consider whether that power which otherwise vests in the State Government is wholly taken away. There are no express words in the States Reorganisation Act, expressly conferring the power of integration of such services exclusively on the Central Government. The powers of the Central Government in connection therewith have to be inferred or implied from the language used in the section. The words used in sub-section (5) of Section 115 are that the Central Government is empowered to establish one or more advisory committees for the purpose of assisting it in regard to the integration of services. The words used are not "for the purpose of the integration of services". The expression "in regard to" does not suggest the purpose for which assistance has to be given, but refers to the subject-matter in connection wherewith assistance has been rendered. There are numerous provisions contained in the Act which show that when Parliament intended that certain functions should be performed by a particular authority, it has in express terms so laid it down. Even where the power to allot service personnel either provisionally or finally has been conferred on the Central Government, it has been so done by express words in other parts of this very section. Having regard to the language used, as we shall presently show, it is not necessary to infer by implication that Parliament has completely taken away or abrogated the power of the State Government to integrate the public services of the State. If it was the intention of Parliament to so lay down and to confer the sole and exclusive power upon the Central Government to integrate the public services in the newly formed State s, there would have been nothing easier than for Parliament to provide that the Central Government alone shall have the authority and power to integrate the services. The powers which have to be inferred by necessary implications from the language used must be powers which one cannot be so infer. Where a power has been conferred by the Constitution on the State Government to integrate the State Public Services, in order to take away that power, language must be used which must leave no alternative but to infer that such power has by necessary implication been taken away.

(21) A reliance was placed upon the provisions contained in Section 117 which empowers the Central Government to give directions to any State Government for the purpose of giving effect to the provisions contained in Part X, i.e, section 114 to Section 1188 of the Act. A provision relating to the giving of directions cannot strictly speaking be invoked for the purpose of considering the authority in which the power of integration vests. The directions have to be given for the purpose of giving effect to the provisions inter alia of S. 115. Section 117 cannot render much assistance for the purpose of considering whether the Central Government is constituted the sole and exclusive authority for the purpose of the integration of the services. We must look elsewhere for the purpose of finding the power of the Central Government to exclusively function in connection with such integration. Having considered of provisions of Section 115 s a whole and having considered the provisions in the light of the other provisions contained in the State Reorganisation Act, it appears to us that the Central Government has certain functions to perform in connection with the integration of services, but that it is not constituted the sole and exclusive authority for the purpose of the integration of services and that the power of the State Government is not wholly taken away in connection therewith. The provisions of sub-section (5) of Section 115 would be fully satisfied if the power of the State Government conferred under 162 of the Constitution is made subject to any directions which the Central Government may give to the State Government in connection with the integration of services. The Central Government has been assigned functions in connection with the ensuring of fair and equitable treatment to all persons affected by the provisions of Section 115 and has been vested with the power to give directions toe State Government in connections therewith. The Central Government is assigned functions in connection with the proper consideration of any representations made by persons affected by the provisions of the said section, and has been empowered to give directions to the State Government in connection with therewith. Having functions to perform in connection with all these matters and having got the power to give directions to any State Government in connection therewith, it would be proper to hold that the powers of the State Government to integrate the public services of the State conferred under the Constitution exist and survive to the extent that such have not been abrogated for the purpose of giving effect to the directions that may be issued by the Central Government to the State Government. This construction will preserve the power of the State Government to integrate its public service subject to any directions in connection therewith given by the Central Government. If any other interpretation was to be put upon the language used and if it was held that the Central Government alone was entitled to integrate the public services until the States, then the result would be that until the Central Government chose to act in the exercise of its powers, the State Government would be helpless in connection with its own public services and would be to look on and wait until the Central Government, in exercise of its powers, those to act. In or few, the construction which we are placing is a construction which gives full effect to words used and gives to the Central Government the requisite power to give directions in the exercise of it functions in connection with the integration of services. To the extent that the Central Government chooses to exercise that power, the power of the State Government would be circumscribed or limited. It is not necessary for the purpose of giving effect to the language used in sub-section (5) of Section 115 to hold that by necessary implication the power of the State Government is thereby wholly taken away in connection with the integration of services or that the same is wholly and solely conferred on the Central Government.

(22) We are supported in this conclusion of ours by the attitude adopted both by the State Government and the Central Government until the decision of the Mysore High Court in the case of AIR 1961 Mys 210. In that case by orders passed by the State of Mysore on 3rd May 1960, the posts of a sales tax officer Class II of the former State of Hyderabad and of a sales tax officer Grade III of the former State of Bombay were equated with effect from November 1, 1956 with that of an Assistant Commercial Tax Officer in the new State of Mysore. It was contended that the State of Mysore had no competence to make any such equation orders and that the same transgressed the proviso to Section 115(7) of the States Reorganisation Act, 1956. After dealing with the provisions of Article 162 of the Constitution, the court held that the under the Constitution "the power to intranet its service would normally have formed part of the executive power of the new State of Mysore". We are in respectful agreement with that view. At page 215 of the judgment, the Court has next proceeded to consider the question whether Section 115(5) of the States Reorganisation Act "transmitted that power to the Central Government and whether the executive power of the new State of Mysore, when it was formed, stood abridged to that extent". The Court answered the question by observing as under:

"We think that the language of Section 115(5), its subject-matter, and the purpose sought to be accomplished in its enactment make it manifest that the legislative intent was to constitute the Central Government the exclusive authority for integration".

(23) It was urged before the Mysore High Court that the expression "in regard to the division and integration of the services" occurring in Section 115(5) authorised the obtaining of assistance in regard to and not for the purpose of integration and demonstrated that the Central Government was not invested with competence to make the integration but only to exercise supervisory jurisdiction in regard to integration after it was made by the State. The functions to be performed by the Central Government in connection with the integration of the services could not be restricted to any action to be taken by the Central Government after the integration had been effected by the States. Even during the process of integration and even in connection with the principles on which integration is to take place, the Central Government would have the power to issue directions to the State Government which the State Government would be under an obligation to carry out. But, with respect, we cannot agree with the decision of the Mysore High Court that the Central Government is constituted the exclusive authority for integration.

(24) Mr.Patel the learned advocate appearing on behalf of the petitioners, ha urged that the expression "integration" in the context in which it has been used merely refers to the allotment of the service personnel and nothing more. He submitted that wherever the legislature had sought to confer any power, it had in terms so provided and that the only power conferred by the sub-section (2), (3) and (4) which precede sub-section (5) of Section 115 upon the Central Government was the power to direct certain persons to serve provisionally in connection with the affairs of a successor State or to finally allot persons to serve in connection with the affairs of the successor State and to determine the date from which the services of persons finally allotted were to be made available for serving in the successor State where no agreement was arrived at in that connection between the Governments of the respective States. He urged that in this context, "integration" can only mean allotment and that the words "division and integration" convey only one concept viz., the concept of dividing the various services and allotting the personnel of various services to different States, so that the personnel allotted to any State would constitute the personnel of the services of that State. He urged that the implication of he word "integration" were satisfied by bringing together the personnel of various services to serve in connection with the affairs of the new State and that it is not necessary to imply anything more. He also laid stress on the use by the legislature of the proposition "among" in the sentence containing the words "the division and integration of the services among the new States and the States of Andhra Pradesh and Madras". He urged that it would be correct to say that the division of the services is to be made "among the new States and the States of Andhra Pradesh and Madras" but if the word "integration" was to be given a wider meaning so as to cover anything more than allotment, then the language used could not possibly be regarded as apt language, became one cannot have such integration of the services among the new States and the States of Andhra Pradesh and Madras but only in the respective States. He urged that either the word "among" cannot be said to have been property used or the word "integration" must bear the limited meaning which he has sought to give and that as Parliament must be considered to have used proper grammatical language, the word "integration" in the context must mean allotment. The words "to integrate" mean "to make a whole or complete by adding or bringing together parts". This is what Webster says in his New World Dictionary. The essence of integration is to make whole and no merely to put in juxtaposition. If various persons belonging to various services, bearing different designations and having different terms and conditions of service are merely brought together in one hotchpot and the only connecting thread between them is the common service of a State, it cannot be said that there is any integration of the services. A truncated meaning cannot be given to the expression "integration" just because it could be urged that otherwise the grammar is a little faulty. The word "among" is rightly used in connection with division but it does not properly fit in connecting with integration. The word "integration" must be given the natural meaning which it ordinarily bears. If the word "integration" was capable of bearing the meaning which Mr.Patel wants us to give, there would be some force in the argument advanced by him. But in our view, the word "integration" and come to a decision which would not give full effect to the word used. We are unable to accept the plea that the word "integration" merely covers allotment.

(25) Arguments were advanced before us in connection with the question as to when it could be said that the process of integration has commenced and when it could be said that it has ended. It was argued by the learned Attorney General that he process of integration would start with the allotment of the personnel of various services to a newly formed State and would cover the determination of equivalence of posts, the absorption of the personnel in equivalent posts and the determination of inter se seniority. He further urged that it would also include the fixation of pay scales. The is sufficient for the purpose of the present case to hold that the determination of equivalence of posts, the absorption in equivalent posts and the appointment of persons to such posts would form part of integration and would be covered by the expression "integration". The directions which have been given by the Central Government and which have been challenged before us are directions regarding the equivalence of posts and the absorption of the allotment personnel in equivalent posts. It was urged on behalf of the States of Gujarat that when the Government of the State of Bombay passed the resolution dated 25th October 1957in connection with equation of posts and issued absorption/seniority lists in pursuance thereof, the process of integration was complete and that thereafter there was no power left in the Central Government to give any directions in connection with integration. From the evidence that has been produced before us it is clear that the Government of the newly formed Part A State of Bombay itself had invited representations in connection with the principles relating to absorption as well as absorption and seniority and integration could not possibly be said to be complete on 25th October 1957. Representation had in fact been thereafter made both against the principles relating the equation of posts and against the actual absorption of personnel in accordance therewith and the State Government itself had invited the Central Government to give the requisite directions in connection therewith, having regard to the recommendations made by the various members of the State Advisory Committee. The State Government had even gone to the length at one stage of requesting the Advisory Committee to reconsider its recommendations to the Central Government. By no stretch of reasoning could the process of integration be considered to have been complete on25th October 1957so far as the State Government was concerned. So long as the Central Government had the power to give directions to the State Government for the ensuring of the fair and equitable treatment to the persons affected by the provisions of Section 115 and for carrying out its decisions in respect of representations made to it by such persons it could not be said that the process of integration was complete. The contention of the State Government that the Central Government had no power to give directions to the Government of State of Bombay on 5th February 1960, as integration by that time was complete, is without merit.

(26) In the present case, we are concerned with the validity of the action taken by the Government of State of Bombay on 1st April 1960. It was urged on behalf of the petitioners that the Government of the State of Bombay, in passing the resolution dated 1st April 1960, had not acted in the exercise of its own independent powers and judgment but had merely carried out the directions issued by the Central Government and that the action taken of the State was void and of no effect. It was urged that under the rules framed by the State Government on 18th October 1957, the State Government was empowered to declare equivalent posts, that the State Government, in the exercise of its powers, did declare equivalent posts on 25th October 1957 and that in making changes therein on the 1st April 1960 it had not exercised any power or direction vested in it but had acted at the dictation of the Central Government and that it was not a valid exercise of its powers of discretion. He invited our attention in this connection a decision of the Supreme Court reported in : [1952]1SCR135 , in the case of Commissioner of Police Bombay v. Gordhandas Bhanji and passages from Judicial Review of Administrative Action by S.A.de Smith at Pages181, 182 and 206and a passage from Markoses Book on Judicial Control of Administrative Action in India appearing at page 395. He urged that the State Government in passing the resolution of the 1stof April 1960 was not exercising its powers under Article 309 of the Constitution but had abdicated its powers and functions under Article 309 and under the rules framed thereunder and was acting on command or at the dictation of the Central Government. It is no doubt true that an authority entrusted with a discretion must, not in the purported exercise of its discretion, act under the dictation of another body. It is however not necessary for us to consider the question of the validity of the resolution passed by the Government of the State of Bombay on 1stApril 1960 on the footing of the said resolution having been passed by the State Government in the exercise of its own independent discretion or power. As we have held earlier, by reason of the provisions of the States Reorganisation Act, 956 the State Government was under an obligation to carryout the directions issued by the Central Government in regard to the integration of services. The directions given by the Central Government on 5th February 1960 were directions given in connection with the integration of services and the State Government was under an obligation to carry out the same and the order issued by the State Government on 1st April 1960 in pursuance of such directions cannot be regarded as being either invalid or void. We are not concerned in this petition with the question whether the Central Government is entitled to give any directions to the State Government in connection with the integration of services governed by the provisions of the Constitution. We have not applied our minds to the question whether different considerations would apply when the question of the exercise of powers by the Governor of a State may arise under the provisions contained in Article 233 or 234 of the Constitution which are worded differently and do not contain the words "subject to the provisions of the Constitution", which appear in Article 162 and 309. No argument have been advanced in that connection and we should not be deemed to have expressed any opinion in connection therewith.

(27) Arguments were also advanced before us in connection what would constitute conditions of service. It was urged that the right to occupy posts, the right to be appointed to equal; posts in newly formed States and the right to be absorbed in such posts and to be pointed to such posts formed part of the conditions of exercise of the allotted service personnel, and that such conditions of service were not liable to be varied to the disadvantage of the persons who had been allotted to the State of Bombay with out the previous approval of the Central Government under the proviso to sub-section (7) of section 115 of the Act. Section 115(7) run as follows:-

"Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of conditions of service of persons serving in connection with the affairs of the Union or any State.

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the pervious approval of the Central Government".

The expression: conditions of service" is an expression which finds a place in Article 309 of the Constitution. That Article appears in Chapter I, Part XIV of the Constitution. The words "conditions of service" appearing in section 115(7) can only have the meaning which is attributable to those words in Article 309 of the Constitution. Article 309 provides as under :--

"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed in public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for President or such persons as he may direct in the case of service and posts in connection with the affairs of the Union, and for the Governor of a State or such persons 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 provisions in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules o made shall have effect subject to the provisions of any such Act".

From this Article it is evident that rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and condition relating to recruitment and relating to appointment to public services and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts. By virtue of the provisions contained in sub-section (7) of section 115, the powers of State Government in relation to the determination of the conditions or service of persons serving in connection with the affairs of the State have been preserved after the appointed day subject to what is stated in the proviso to that sub-section. By virtue of the proviso, the conditions of service of the allotted personnel applicable immediately before the appointed day are not liable to be varied to the disadvantage of such persons without the previous approval of the Central Government. In the present case we are concerned with the question of equation of posts and of the absorption of persons in certain posts and the appointment of persons in certain posts and not the conditions of service of persons appointed to certain posts, and the provisions of section 115(7) cannot be invoked in that connection. It was urged before us that the rules framed by the Government of the State of Bombay on 18th October 1957 have been approved by the Central Government. This statement has been disputed by the Central Government. The correctness of recital contained in the resolution of the Government of the State of Bombay dated 18th October 1957 the rules had been framed "with due regard to the proviso to sub-section (7) of section 115 of the States Reorganisation Act, 1956, and with the approval of the Government of India obtained thereunder where necessary", has been disputed. It is not necessary for the purpose of present case to consider whether the rules framed by the Government of the State of Bombay on 18th October 1957 had or had not received the approval of the Central Government or whether at least some of the rules could be regarded as having been duly approved by the Central Government within the meaning of section 115(7) of the States Reorganisation Act, 1956. It was also urged by the learned Attorney General that no question of the approval of the resolution dated 25th October 1957 ever arose before the Central Government as that resolution as that resolution had not in fact been forwarded to the Central Government for its approval. We are really not concerned with the question whether that resolution had or had not expressly or by implication been approved by the Central Government. As stated by us earlier, the question relating to equation of posts and the absorption of persons in certain posts and the appointment of persons to such posts cannot be regarded as falling within the words "conditions of service" as appearing in section 115(7) of the aforesaid Act.

(28) This covers most of the arguments advanced before us on the merits of the matter. There are other points which have been argued before us and we shall briefly deal with the same.

(29) Mr.K.M.Chhaya, the learned Advocate who appears on behalf of the third respondent, has contended before us that no relief should be granted to the petitioners on the present petition. He strongly relied upon the provisions of section 81(1) of the Bombay Reorganisation Act, 1960, whereunder a provision has been made for the provisional allocation of certain persons to serve in connection with the affairs of the State of Gujarat. On 1st of May 1960, being the appointed day, under the provisions of the Bombay Reorganisation Act, 1960, the State of Gujarat was formed. By an order passed by the Central Government on 28th of April 1960, in exercise of the powers conferred by sub-section (1) of section 81 of the Bombay Reorganisation Act, 1960, the Central Government required all persons who, immediately before the appointed day, were serving in connection with the affairs of the State of Bombay in the territories specified in clauses (a) and (b) of sub-section (1) of section 3 of the said Act, to serve provisionally as from the appointed day in connection with the affairs of the State of Gujarat. The territories specified in clauses (a) and (b) of sub-section (1) of section 3 of the said Act are Banaskantha, Mehsana, Sabarkantha, Ahmedabad, kaira, Panchmahals, Baroda, Broach, Surat, Dangs, Amreli, Surendranagar, Rajkot, Jamnagar, Junagadh, Bhavnagar and Kutch districts and certain villages in Nawapur and Nandurbar taluka of West Khandesh district and certain villages in Akkalkuwa and Taloda taluka of West Khandesh district. On the same day, there was another order passed by the central Government in exercise of the powers conferred by sub-section (1) of section 81 of the said Act, requiring the persons mentioned in the schedule to that order and serving immediately before the appointed day in connection with the affairs of the State of Bombay, to serve provisionally as from the appointed day in connection with the affairs of the States of Maharashtra and Gujarat as indicated in the said schedule. He stated that the petitioners were person appointed by the Central Government to serve provisionally in connection with the affairs of the State of Gujarat. He urged that the persons who were appointed to serve in connection with the affairs of the State of Gujarat held immediately before the appointed day certain posts by reason of the orders passed by the Government of the State of Bombay on 1st April 1960 and that their continuance in such posts after their allotment to the State of Gujarat cannot be affected and no relief should be granted to the petitioners in connection therewith. Reliance has been placed in this connection on sub-section (6) of section 81 of the Bombay Reorganisation Act, 1960, which runs as under :--

"Nothing in the section shall be deemed to affect, after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation tot he determination of the conditions of service of persons serving in connection with the affairs of the State of Maharashtra or Gujarat :

Provided that the conditions of service applicable immediately before he appointed day to the case of any person provisionally or finally allotted to the State of Mahrashtra or Gujarat under the section shall not be varied to his disadvantage except with the prior approval of the Central Government".

What we have stated above in connection with the words "conditions of service" as used in sub-section (7) of section 115 of the States Reorganisation Act, 1956 equally applies to the words "conditions of service" used in sub-section (6) of the section 81 of the Bombay Reorganisation Act, 1960. Continuance of persons allotted as aforesaid in the same posts which they occupied prior to their allotment is not guaranteed by the Bombay Reorganisation Act, 1960, and the point urged by Mr. Chhaya must fail.

(30) Mr.Nanavaty, the learned advocate appearing on behalf of respondents 4 to 141, ahs urged that the petitioners have no right to maintain the petition as they have no legal right to enforce any of the provisions contained in the Allocated Government servants (Absorption, Seniority, Pay and Allowances) Rules, 1957, or any equation orders issued on 25th October 1957.he urged that the power to frame rules fell within Article 309 of the Constitution, that under the provisions of Article 310, it had been expressly laid down that every person who was a number of a civil service of a State or held any civil post under a State, held office during the pleasure of the Governor and that no right could be said to have been conferred upon any member of such service by reason of any rules framed under Article 309 which could be enforced in a Court of law, and that any action taken under the rules is not justiciable. In support of his contention he strongly relied upon a decisions of the Privy Council reported in in the case of R.Venkata Rao v. Secy for India in Council, in AIR 1960 Bom 14 [LQ/BomHC/1958/103] , in the case of S. Framji v. Union of India. Placing reliance upon these cases, he urged that any rules framed under Article 309 would not confer any right upon a person employed in the civil service of a State which could be enforced in a court of law. Article 309 of the Constitution inter alia provides that 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. If, in the exercise of the powers conferred under Article 309, Parliament or the legislature or a State had by an enactment regulated the recruitment and conditions of service of persons referred to therein, it could not possibly be said that what was provided by the Act of the legislature could be contravened with impunity without giving any legal remedy to the person affected. In the case of the Privy Council had to consider the provisions of section 96B of the Government of India Act, 1915 and held that the Civil Service Classification Rules conferred no right which was enforceable action. The Privy Council in that case had cited then observation of Lord Hebhouse made in the earlier case of Shenton v. Smith reported in (1895) AC 229 where it had been stated that the regulations of service were merely directions given by the Crown to the Governments of Crown Colonies for general guidance and that they did not constitute a contract between the Crown and its servants. It wold however not be possible to say that if an Act of the legislature had laid down the conditions of service of persons appointed to public services and posts in the exercise of the powers conferred under Article 309 of the Constitution they would be liable to be regarded as merely administrative directions because of the existence of Article 310 of the Constitution. The power of the Governor of a State under Article 309 to make rules regulating the recruitment and conditions of service of person appointed to public services and posts in connection with the affairs of a State cannot be treated differently from the power of the legislature to do so by an Act under Article 309. The rules framed under the proviso to Article 309 would be statutory rules and would have force and effect as such and would confer rights which could be enforced in a court of law so long as they did not impinge the provisions contained in Article 310 and did not deal with the tenure of office of such persons which, as provided by Article 310, was liable to be held during the pleasure of the Governor. A reference in this connection may be made to a decision of the Supreme Court reported in : 1961CriLJ773 in the case of State of Uttar Pradesh v. Babu Ram Upadhya. At page 761 of the report, Mr. Justice Subba Rao who delivered the majority judgment of the court, observes as under :-

"The discussion yields the following results :

(1) In India every person who is a member of a public service described in Article 310 of the Constitution holds office during pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution. (3) This tenure is subject to the limitations or qualifications mentioned in Article 311 of the Constitution. (4) The Parliament or the Legislature of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310,as qualified by Article 311. (5) The Parliament of the Legislature of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or Governor under Article 310 of the Constitution read with Article 311 thereof. (6) The Parliament and the Legislature also can make a law laying down and regulating the scope and content of the doctrine of reasonable opportunity embodied in Article 311 of the Constitution; but the said law would be subject to judicial review. (7) If a statute could be made by Legislatures within the forgoing permissible limits, the rules made by an authority in exercise of the powers conferred thereunder would likewise be efficacious within the said limits".

We have in the present case to consider the question whether the resolution of the Government of Bombay passed on 25th October 1957 in the exercise of the powers conferred upon the Government, could confer any rights upon the Government servants concerned which could be enforced in a Court of law. In our view, there is no reason why the resolution should be deprived of the characteristic of such enforcement. The resolution cannot merely be regarded as only a guide. With respect, we are unable to agree with the conclusion arrived at by the Bombay High Court in the judgment reported in AIR 1960 Bom 14 [LQ/BomHC/1958/103] , on which reliance has been placed and in which it has been held that though the Indian Railway Establishment Code contains rules which are statutory rules, they are rules of guidance. What is questioned by the petitioners in the present case is the action of the Central Government in giving directions to the State Government and the action of the State Government in carrying out those directions. We do not see why the petitioners cannot obtain any relief in connection therewith if they could make good their submissions on the merits. The plea that the petition is not maintainable must therefore fail.

(31) It was urged that even if the petitioners contentions as set out in the petition were correct, no purposeful writ could issue against the Government of the State of Gujarat. It was urged that conditions of service had been brought into existence by the resolution of 1st April 1960, that the same existed prior to 1st May 1960, the day on which the State of Gujarat was constituted, and that the State of Gujarat was not competent to change the aforesaid conditions of service. We are unable to accept this argument urged by Mr.Nanavati. The argument proceeds on a wrong premise. The resolution of 1st of April 1960 deals with the question of equation of posts and not with the question of conditions of service within the meaning of section 115(7) of the States Reorganisation Act, 1956 and the contention urged in connection therewith must fail.

(32) We may mention that the petitioners had in the petition contended that the action complained of was violative of the provisions of Articles 14 and 16 of the Constitution of India. That contention however has not been pressed before us and we are not dealing with the same.

(33) It has also been contended in the affidavit filed on behalf of some of the respondents that the petition is not maintainable in the absence of the Central Government. That point however has not been passed before us. It was also contended in such affidavit that the petition is not maintainable in the absence of Maharashtra Government. The said contention has also not been pressed before us.

(34) In the result, the petition fails and is dismissed. Taking into account all the circumstances of the case, we consider that the fair order to make as regards costs would be that each party should bear its own costs and we order accordingly.

Bhagwati, J.

(35) This petition raises a question of great importance affecting the position and status of certain categories of employees in the Subordinate Secretariat staff of the State of Gujarat. The employees affected by this question are divided into two sections, one section representing the employees coming from the erstwhile State of Saurashtra and the other section representing the employees coming from the pre-reorganised State of Bombay. There has been unfortunately for the State of Gujarat a controversy raging between those two sections of employees since some time past. The controversy relates to the question of equation of posts and it arose as a result of the amalgamation of service personnel belonging to the State of Saurashtra and the pre-reorganized State of Bombay brought about by the States Reorganisation Act, 1956, (hereinafter referred to as the Act). The controversy which thus started has continued unabated with varying fortunes on either side. It will be seen from the facts which I shall presently state that the State Government first fixed an equation of posts for the absorption of the employees coming inter alia from the State of Saurashtra and the pre-reorganized State of Bombay which classified the employees coming from the State of Saurashtra. After two and a half years on a representation made by some of those employees, the Central Government gave a direction to the Central Government gave a direction to the State Government to alter the equation of posts which caused dissatisfaction to the employees coming from the pre-reorganized State of Bombay. The controversy has now been brought before the Court and a legal solution is sought to the problem raised by the controversy. The alteration of the equation of posts made by the State Government under the directions of the Central Government is challenged by the petitioners who are some of the employees coming from the pre-reorganized State of Bombay. The only question which arises on the petition whether the alteration is valid. The court is not concerned with the question whether the alteration is wise or unwise, just or unjust, politic or impolitic. That is a matter for the appropriate Government to decide. The concern of the Court is merely to see whether the alteration is within authority. If it is within the authority, the Court must uphold it and equally if it is without authority, the Court must strike it down. Having given my anxious consideration to the various arguments which have been advanced on behalf of the parties. I find myself in entire agreement with the conclusion reached by My Lords the Chief Justice in the judgment just delivered by him. But having regard to the importance of the questions involved, I think it right too separately record my reasons for reaching this conclusion.

(36) The petitioners are employees belonging to the subordinate Secretariat staff of the State of Gujarat and prior to the reorganization of States brought about by the Act, they wee employed in the subordinate Secretariat staff of the pre-reorganized State of Bombay. Prior to the reorganization of States respondents Nos. 3 to 141 belonged to the Subordinate Secretariat staff of the State of Saurashtra which was then a Part b State and are at present employed in the Subordinate Secretariat staff of the State of Gujarat. It is now matter of history that reorganization of States as they existed prior to 1st November 1956 was brought about by the Parliament by enacting the Act. The Act was enacted on 31st August 1956 but sometime prior to the actual enactment of the Act the decision of effect reorganisation of States was taken and even the lines on which the States were to be reorganised were broadly settled, though there was some change made in the scheme of reorganisation as regards the State of Bombay at the time when the Act was passed by the Parliament. It was evident that the proposed reorganisation of States would bring in its wake various problem and a conference was, therefore, convened by the Central Government in Delhi in May, 1956 at which representatives of various States which were going to be affected by the reorganisation were invited to be present. At the conference broad principles were discussed and settled in regard to various matters arising out of the reorganisation of States. One of such matters was integration of services and there were two problems in regard to this matter. One was determination of equation of posts and the other was determination of seniority. As regard determining of equation of posts, it was agreed that the following four factors should be borne in mind in equating posts :

(i) the matters and duties of a post;

(ii) the responsibilities and powers exercised by officer holding a post; the extent of territorial or other charge held or responsibilities discharged;

(iii) the minimum qualifications, and if any, prescribed for recruitment to the post and

(iv) the salary of the post.

An agreement was also reached as regards determination of relative seniority as between persons holding posts declared equivalent to each other and drawn from different States but for the purpose of the present petition I am not concerned with the same. Subsequent to this conference an Integration Committee of Ministers was set up for the purpose of dealing with persons belonging to the gazetted services while an Integration Committee consisting of Chief Secretaries was set up for the purpose of dealing with persons belonging to the non-gazetted services. It appears that the aforesaid four principles for determining equation of posts which were agreed upon at this conference were also approved by the Integration Committee consisting of the Ministers. Thereafter the Act was brought into force on 31st August 1956 and the Act specified 1st November 1956 as the appointed day when the reorganisation of States would take place. Before the appointed day a letter was addressed by the Chief Secretary to the then State of Rajasthan Government to the Joint Secretary to the Government of India, Ministry of Home Affairs, New Delhi on 11th August 1956, seeking the opinion of the Central Government as to whether the State Government should draw up and publish the principle for integration of services after the appointed day. A reply was sent to this letter by the Government of India Ministry of Home Affairs, New Delhi on 23rd October 1956, stating that the general rules providing for integration of services may be framed by the States and integration under those rules would be deemed to have been effected under the authority of the Government of each respective State,, subject to the course to the powers of the Central Government under the Act. This reply was circulated amongst all the States affected by the reorganization of States. On the appointed day the reorganisation of States took place as provided in the Act and as a result thereof the new States of Kerala, Mysore, Bombay, Madhya Pradesh, Rajasthan and Laccadive, Minkcoyand Amindivi islands came to be formed and the territories of the existing States of Andhra Pradesh and Madras came to be altered. In the beginning, 1956, a conference of Chief Secretaries and other representatives of various States was convened by the Central Government at New Delhi on 6th and 7th December 1956. At this conference various matters arising out of the Reorganisation of States were discussed between the representatives of the Central Government and the representatives of State Governments. The learned Attorney General produced before the Court a record of the discussions held at this conference. This record shows that the subject matter of the discussions at this conference was the topic relating to the protection to be accorded to the service personnel effected by the Reorganisation of States in respect of the conditions of service applicable to them immediately prior to the appointed day. Various views were expressed on this topic by representatives of the State Governments and on certain matters a measure of agreement reached between the representatives of the Central Government and the States. Apart from this topic some discussions also took place on the question of equation of posts. The representatives of the Central Government in the ministry of home affairs clarified the position of the Central Government on this question by pointing out that the intention of the Central Government was that equation of posts should be settled with reference to the aforesaid four principles agreed upon at the conference of May, 1956 but that if in any case the States wanted to effect a cadre to cadre integration it was open to them to do so. The representatives of the Central Government, however, hastened to make it clear that there was not necessarily a conflict between the two fomulae. This conference was followed by a letter dated 27th March 1957 addressed by the Central Government to various State Governments including the Government of Bombay. The letter dealt with the conditions of service applicable to service personnel affected by the Reorganisation of States and it was pointed out in the letter that after a careful consideration of the views expressed at this conference of the Central Government had decided that in regard to certain matters specifically set out in the letter the conditions of service applicable to such service personnel immediately before the appointed day should be protected in the manner indicated in the letter. The central Government made it clear that as regards conditions of service in relation to other matters not specifically dealt with in the letter, it would be necessary for the State Government to obtain the prior approval of the Central Government under Section 115(7) of the Act, if the conditions of service in relation to those matters applicable immediately before the appointed day to such service personnel were sought to be prejudicially affected. No direction was given in the letter as regards equation of posts nor was anything stated in the letter as to what basis should be adopted by the State Governments in the matter of equation posts. The position which thus obtained in regard to the question of equation of posts was that the representatives of the Ministry for Home Affairs, Government of India, had intimated to the State Government of at the conference held on 6th and 7th December 1956 that the State Government might equate posts either on the basis of he aforesaid four principles discussed at the conference of May, 1956 or on the basis of the cadre to cadre integration. A press note was accordingly issued by the Government of Bombay on 21st 1957 declaring that equation of posts for the purpose of integrating the service personnel drawn from various States would be affected by the Government of Bombay on the basis of the aforesaid four principles. It may be pointed out at this stage that under the Act a new State of Bombay was formed comprising of territories drawn from five existing States, namely Bombay, Saurashtra, Kutch, Hyderabad and Madhy Pradesh. The service personnel belonging to these various States of Bombay under the provisions of Section 115 of the Act to which I shall refer a little later. It was necessary for the purpose of integrating the service personnel coming from these different States that equation of posts should be effected, for in their respective States where they were serving prior to the Reorganisation they held different posts in different cadres which might or might not be equivalent to one another. They had all to be fitted into form a compact and homogenous service and it was, therefore, necessary to decide where and at what place they should be fitted in. This process necessarily involved equation of post and it was in reference to this question that the Government of Bombay issued a press note dated 21st March 1957setting out the aforesaid four principles on which equation of posts would be effected. The Governor of Bombay thereafter made the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957. I shall briefly for the sake of convenience refer to them as the Rules of 1957. The preamble to the Rules of 1957 stated that they were made by the Governor of Bombay in exercise of the powers conferred by the proviso to Article 309 of the Constitution and with due regard to the proviso tot sub-section (7) of Section 115 of the Act and with the approval of the Government of India obtained thereunder where necessary. The Rules of 1957 provides who were inter alia for absorption of all persons who were allotted for serve in the State of Bombay under Section 115 of the Act in posts under he State of Bombay. They declared that the appointing authority shall issue an order of absorption in respect of each one of these persons as laid down in the Rules after the equivalent posts were declared by the Government. The Government of Bombay thereafter by a resolution dated 25th October 1957 declared equivalent posts and pursuant to the equation of posts thus made by the Government of Bombay absorption orders and seniority orders were issued integration by the appropriate authorities. The effect of the equation of posts thus made by the Government of Bombay was that in each of the following categories, namely, Senkro and Junior Superintendents and Senior and Junior Assistants, persons coming from erstwhile State of Saurashtra who had put in more than five years service in that category on 31 st October 1956 were equated with persons from the pre-reorganised State of Bombay carrying the same designations while persons from the erstwhile State of Saurashtra who held their posts in each of these categories for a period of five years or less were equated with persons from the pre-reorganised State of Bombay carrying he next lower designations. A circular was issued by the Government of Bombay on 11th December 1957 pointing out the equation of posts had been made on the basis of the aforesaid four principles agreed upon at the conference of May, 1956 and approved by the Integration Committee consisting of the Ministers. The Rules of 1957wr forwarded by the Government of Bombay to the Central Government on 18th November 1957along with the progress report for the month of October, 1957. I think it is necessary to mention here that every month progress report were being sent by the Government of Bombay to the Central Government showing the progress made in regard to the integration of service within the State and along with the progress report for the month of October 1957,the Rules of 1957were forwarded to the Central Government. The Central Government admitted receipt of the Rules of 1957 but so far as the resolution dated25th October 1957 determining the equation of posts was concerned, according to the Central Government, this resolution was not sent by the Government of Bombay to the Central Government and the Central Government did not come to know about it until much later. It appears that on receiving the Rules of 1957the Central Government felt that one of the rules, namely, Rules 18, was not in accordance with the decision of the Central Government as regards conditions of service contained in the letter dated 27thMarch addressed by the Central Government to the Government of Bombay and the Central Government accordingly asked the Government of Bombay to clarify the position. The Government of Bombay thereupon amended Rule 18 on 6th August 1958. In the meantime against the equation of posts effected by the Government of Bombay by the resolution dated 25th October 1957and the absorption and seniority order issued pursuant to such equation of posts, certain representation were made to the Central Government. One of such representation was by Shri V.B.Amin and thirty other employees coming from the erstwhile State of Saurashtra. Their grievance was that under the equation of posts effected by the Government of Bombay they had been put in a category lower than that occupied by them whilst they were in the service of the erstwhile State of Saurashtra. This representation along with several others with which I am not concerned for the purpose of the present petition was placed before the State of Advisory Committee constituted by the Central Government under S. 115(5) of the Act .the State Advisory Committee was composed of a member of the State Public Service Commission, and Officer of the State Government and an officer nominated by the Central Government. The representation of Shri V.B.Amin and thirty others was considered by the State Advisory Committee and a recommendation was made by the State Advisory Committee which is to be found in the minutes of the meeting of the State Advisory Committee held on 2nd June 1959wwhich forms part of Exhibit 2. The State Advisory Committee recommended that a fairs solution of the problem would be continue persons with less than five years service in separate categories on the pay scales applicable to them in the erstwhile State of Saurashtra and that they should be considered side by side with persons from the pre-reorganised State of Bombay in the next lowers category, with this protection the against the our every four vacancies occurring on or after 1asrt November 1956 should go to them. The Central Government did not agree with this recommendation of the State Advisory Committee and requested them to reconsider the matter in the light of the observation contained in the letter dated 22nd September 1959 addressed by the Government of India to the chief secretary to the Government of Bombay. The matter was, therefore, again brought before the State Advisory Committee and on a reconsideration of the matter divergent views came to be expressed by the members of the State Advisory Committee. The Chairman of the State advisory Committee stuck to the previous recommendation made by the State Advisory Committee with a little modification in the case of Junior Assistants with less than five years service coming from the erstwhile State of Saurashtra, Another member who was an Officer of the Government of Bombay did not approve even of this modification and insisted the previous recommendation and insisted that the previous recommendation was correct. The third member who was a nominee of the Central Government evolved a compromise formula which was to the effect that those persons from the Saurashtra Secretariat who put in over five years service in a particular catefgoryon31st October 1956 should be equated with persons carrying the same designation in the Secretariat of the pre-reorganised State of Bombay but that their services in that category should be reduced by five years for the purpose of seniority and that so far as the other persons were concerned, who had put in five years or less service in their respective categories on 31st October 1956, they should ,for the purpose of seniority, be kept in a separate category immediately below all persons from the Secretariat of the re-reorganised State of Bombay carrying similar designations so that this block of persons from the Saurashtra secretariat having five years service or less would become juniors to the junior most persons from the former Bombay Secretariat carrying similar views designations. These views of the members of the State Advisory Committee were communicated to the Central Government. The Central Government, however, did not agree with the views expressed by any of these members and refused even to accept the compromise formula suggested by its own nominee on the State Advisory Committee which perhaps might have put an end to this unfortunate controversy in a manner least dissatisfactory to all concerned and by a letter dated 5th February 1960 directed the Government of Bombay to alter the equation of posts by giving cadre to cadre integration so far as Assistant Secretaries, Senior Superintendents, Superintendents, Senior Assistants and Junior Assistants were concerned and to determine inter se seniority amongst them on the basis of the total length of continuous officiation in the equated cadre. A representation was made against this direction of the Central Government by the first petitioner but to no result and the State Government, in pursuance of this direction of the Central Government, passed a resolution dated 1st April 1960, altering the equation of posts and giving cadre to cadre integration in respect of the aforesaid posts. The result of this alteration of equation of posts was that the maximum limit of the scale enjoyed by persons occupying the aforesaid posts in the Secretariat of the State of Gujarat. This of course did not hurt employees from the pre-reorganised State of Bombay but what hurt them was that as a result of this alteration of equation of posts, their seniority and chances of promotion were affected and they, therefore, after making representations which were rejected, filed the present petition in this Court challenging the validity of the resolution dated 1st April 1960.