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PETITIONER:

C. P. DAMODARAN NAYAR AND P. S. MENON

Vs.

RESPONDENT:

STATE OF KERALA AND OTHERS

DATE OF JUDGMENT20/12/1973

BENCH:

GOSWAMI, P.K.

BENCH:

GOSWAMI, P.K.

REDDY, P. JAGANMOHAN

CITATION:

1974 AIR 1343 1974 SCR (2) 867

1974 SCC (4) 325

CITATOR INFO :

R 1981 SC2181 (27,28)

D 1987 SC 424 (23)

ACT:

States Reorganisation Act, 1956, Ss. 115 and 117-Madras

State judicial Service Rules, 1953, r. 11-Applicability to

officers allotted to Kerala-"Seniority according to decision

of Central Governmental-Right of State Government,to

constitute new cadres--'KLM' principle and its scope.

HEADNOTE:

Under s. 115(5) of the States Reorganisation Act, 1956., the

Central Government may establish one or more Advisory

Committees for the purpose of assisting it in regard to, (a)

the division and integration of services among the new

Stites, and (b) the ensuring of fair and equitable treatment

to all persons affected. Under s. 177 the Central

Government may give such directions to any such State

Government as may appear to be necessary for the purpose of

giving effect to the provisions of the Act and the State

Government shall comply with such directions. Accordingly,

a meeting of the Chief Secretaries of the various States

that were to be effected by the reorganisation was held in

May, 1956, at the invitation of the Central Government, and

certain decisions were taken as to the general principles

that should be observed with regard to the integration work

The Central Government thereafter informed the State

Governments that they had decided that the work of

integration of services, equation of posts and relative

seniority should be dealt with by the State Governments in

the light of those general principles. In 1962, the Central

Government, after considering the representations of the

officers made under s. 115(5) of the Act, in modification of

the earlier principle excluding periods for which an

appointment is held as a purely 'stop gap or' fortuitous

arrangement in fixing seniority, decided that the officers

allocated to Kerala State from the former Madras State may

be allowed benefit of emergency service towards seniority in

the equated category if such service would have been

regularised from the date of their emergency appointment and

counted for seniority in Madras, on 1st November, 1956, had

those officers remained in Madras. The respondent-State

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accepted this decision of the Central Government.

The appellant was selected as a District Munsiff by the

Madras Public Service Commission and was posted as such on

May 26. 1951. and he has been in continuous service since

then. Consequent upon a decision of the Supreme Court of

India, the Madras State Judicial Service Rules (Madras

Rules) were framed in 1953, but were given retrospective

effect from March 1951, and the service of the appellant and

others was regularised as from October 6, 1951. The State

of Kerala came into being on November 1, 1956, and the

appellant was finally allotted Kerala with effect from

October 24, 1956. On March 26, 1966, the respondent State

published the final integrated list of the Travancore-Cochin

and Madras personnel of the Judicial Officers as on November

1, 1956, showing respondents 6 and 7, whose dates of

commencement of continuous service were July 20, 1951, and

October 1, 1951, respectively, as senior to the appellant,

on the basis that October 6, 1951, was assigned to him as

the date of commencement of his continuous service being-the

date of his appointment to the post in the equated category

as on November 1, 1956. The respondent-State, on October

20, 1959, also provided that some posts of District and Sub-

divisional Magistrate of 'executive origin' would be

constituted as a separate service outside the civil

judiciary, while being eligible for appointment as

subordinate judges and Munsiffs respectively. The appellant

filed a writ petition in the High Court questioning inter

alia (1) the rank and place of seniority given to him in the

final list, on the ground that the date of commencement of

his continuous service is May 26, 1951; and (2) the order of

the respondent-State providing a special cadre for

magistrates of executive origin, on the ground that, if that

order was implemented there was the likelihood of sub-

divisional Magistrates securing promotion over munsiffs with

longer service. The High Court dismissed the petition.-

868

in appeal to this Court,

HELD : (1) (a) Rule II of the Madras Rules deals

with temporary appointments. But it is not at all

relevant for the purpose of fixing the seniority of

the appellant. it is inapplicable to the appellant alter

his final allotment to the State of kerala and after the

clear decision of the Government of India allowing the

benefit of emergency service in regard to seniority, which

was accepted by the Kerala Government. [875 H]

(b) Assuming that the rule and the earlier decision of the

Government of India in conformity with the agreement with

the Chief Secretaries referring to purely stop-gap or

fortuitous arrangements may be invoked, they are

inapplicable to the appellant, because, it cannot be held

that the appellant's service is either filled 'owing to an

emergency' or that it was held as a 'purely stop-gap or

fortuitous arrangement.' The appellant had been appointed in

a regular manner through the public Service Commission and

his appointment could not have been made as a purely stop-

gap or fortuitous' one. The Government of India had also

accepted the position that an allotted employee should not

suffer any disadvantage if he would not have been subjected

to a like handicap in his parent State. The correspondence

between the Madras and Kerala Governments after the Central

Government communicated its decision that the allocated

officers should be allowed the benefit of emergency service

in regard to seniority, showed that the position in Madras

State was that continuous service of the officer, whether

regular, temporary or emergency, would have been taken into

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account for the purpose of seniority. The appellant had

been in continuous service from May 26, 1951. Therefore,

the conclusion is irresistible, that the appellant was

entitled to the assignment of May 26, 1951, for the purpose

of seniority, and the appellant in the connected appeal,

would be entitled to the assignment of February 12,

1955.[876 C-G]

(2) There is no force in the contention regarding the

reservation of the separate cadre for the District

Magistrate and sub-divisional Magistrates of executive

origin. It is open to the State Government to constitute as

many cadres as they Choose according to administrative

convenience and expediency. [876 H]

(3) As regards the appellant in the connected appeal he

would not be entitled to an earlier date as the date of

continuous appointment on the ground that an officer junior

to him who was provisionally allotted to the State of Kerala

along with him at initial stage when the new State was

constituted was assigned 1-7-1954 as his date of continuous

service; because, the 'KLM principle' was not applicable to

that appellant. According to the principle the seniority of

the Travancore personnel as between themselves, or of the

Cochin personnel as between themselves could not disturbed

while' determining the relative seniority of the Travancore

and Cochin personnel in any class. But the officer who was

junior to the appellant had arranged for a mutual transfer

with an officer from Madras 'and could not be held to be in

service in Kerala for the purpose of the final integrated

list. The question of inter se seniority cannot arise when

there is nothing. to fix such inter se seniority of the

appellant vis-a-vis his junior. Therefore the benefit of the

principle cannot, be claimed by the appellant. [877C]

JUDGMENT:

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2629 & 2630

of 1969.

From the judgment and order dated the 2nd April,. 1969 of

the Kerala High Court at Ernakulam in Original Petition Nos.

2709 and 2708 of 1966, and

Civil Appeal Nos. 304 & 305 of 1972.

Appeals by special leave from the judgment and order dated

the 2nd April, 1969 of the Kerala High Court in Original

Petition Nos. 2708 of 1966 and

Sardar Bahadur, and C. P. Damodaran Nayar, appellant

appeared in person( in C.As 2629/69 & 305/72)

869

K. T. Harindra Nath and Vishnu Bahadur Saharya, for the

appellant (in C.A. 2630/69).

V. A. Seiyid Mohmud and K. C. Dua, for respondent Nos. 1 &

4 (in C. A. 2629/69 and respondent Nos. 1 & 3 (in C.A.

2630/69).

Gobind Das and S. P. Nayar, for respondent No. 2 (in C.As.

2629 and 2630).

A. V. Rangam and A. Subhashini, for respondent No. 3 (in

C.A. 2629/69).

P. C. Chandi, for respondent No. 3 (in C.A. 304/72) and

respondents Nos. 1 & 4 (in C.A. 305/72).

K. M. K. Nair, for respondent No. 5 (in C.A.A. 2629/69).

S. Gopalakrishnan, for respondent Nos. 6&7 (in C.A. 2629/

69).

The Judgment of the Court was delivered by

GOSWAMI, J. These appeals by certificate are directed

against the judgment of the Kerala High Court in several

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writ applications filed there challenging the final

integration list of judicial officers allotted to Kerala

State under the States Reorganisation Act, 1956, briefly the

Act. The appellant in Civil Appeal No. 2629 of 1969, which

we will take first, was a practicing Advocate. He was

recruited along with 82 others by the Madras Public Service

Commission, briefly the Commission, and was temporarily

appointed as a District Munsiff by the Madras Government on

November 25, 1950. This appointment was under rule 7A of

the Madras State Judicial Service Rules, 'then in force.

The Madras High Court posted him for training which

commenced on January 16, 1951 and while undergoing training

he was posted as District Munsiff at Calicut where he took

charge' of this post on May 26, 1951. Since then he has been

in continuous service as Munsiff, subordinate Judge,

District Magistrate and as District Judge. One B.

Venkataramans, who had not been selected as District Munsiff

along with the appellant and 'others 'in 1950, challenged

the selection made by the Commission in a writ petition

before this Court. This Court allowed the petition and the

decision is reported in V. Venkataramana v. The State of

Madras & 'Another' (1) :This Court held that the Communal G.

0. of the Madras Government which besides making reservation

of posts for Harijans and backward Hindus, as sanctioned by

cl. (4) of Art. 16, also made reservation of posts for other

communities viz. Muslims, Christians, Non-Brabmin Hindus

and Brahmins was repugnant to the provisions of Art. 16 and

was as such void and illegal. The Court, however, did not

cancel all the appointments made during the year but

directed the Government to consider and dispose of the

application of Venkataramana on its merits and without

applying the, rule of communal rotation. It may be

mentioned that the appellants .here and other successful

candidates were not joined as respondents in 'the said writ

petition before this Court. Venkataramana was

(1) A.I.R. 1951

870

accordingly selected and appointed as District Munsiff and

he took charge of his office on October 6, 1951, Consequent

upon the decision in that case the Madras State Judicial

Service Rules (briefly the Madras Rules) were framed on

October 6, 1953 under Article 234 read with Article 309 of

the Constitution. These Rules came into effect

retrospectively from March 22, 1951. It is averred that

appointment of the appellant is thus under rule 11(2) of the

Madras Rules. On November 2, 1953, the Madras Government

directed that the services of the appellant along with other

candidates be, regularised w.e.f. October 6, 1951, the same

date from which Venkataramana's appointment has been so done

(vide Ext. P-7). It is also mentioned in this order that

the 82 officers mentioned in the schedule to the order

including Venkataramana (serial No. 27) and the appellant

(serial No. 72) will commence probation from that date. The

Government, however, sanctioned increment in the time scale

to the appellant and the other District Munsiffs appointed

in 1950 and 1951 from the date of commencement of continuous

service (vide Ext. P-6). Consequent upon the passing of

the States Reorganisation Act on August 31, 1956, 51

judicial officers including the appellant belonging to

different cadres like District Judge, District Magistrate,

Sub-Judge, Munsiff and Sub-Magistrate were transferred from

the Madras State to the Kerala State on September 11, 1956.

The appellant was finally allotted to Kerala w.e.f. October

24, 1956, as per order of the Government of India dated

August 24, 1960, under the Act. The State of Kerala was

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brought into being w.e.f. November 1, 1956. We may note

here that the new Kerala State was formed under section 8 of

the Act comprising the territories of the existing State of

Travancore-Cochin, excluding the territories transferred to

the State of Madras by section 4; and the territories

comprised in Malabar district, excluding the islands of

Laccadive and Minicoy and Kasaragod taluk of South Kanara

district.

The Government of Kerala passed an order (Ext. P-16)

regarding reorganisation of judicial services. After the

reorganisation of States, principles were evolved and

formulated by the Central Government at the conference of

Chief Secretaries of the different States regarding

integration of services. The Kerala Government framed

principles and procedures regarding integration of services

of Travancore-Cochin personnel with the personnel allotted

from Madras (vide Ext. P-13). The Madras Government also

framed general principles for integration of services by

their order dated July. 17, 1957 (vide Ext. P-14). The

Government of Kerala issued orders regarding equation of

posts in the Judicial Department for the purpose of

integration of services on May 27, 1958 (vide Ext. P-17).

The equation was as follows

"Travancore-Cochin

(1) District Judge-I Grade- District Judges-II Grade-Rs.

Rs. 800-1000. 1000-1800.

District & Sessions Judge, District Magistrate. (Judl.)

II Grade-Rs. 500-800. Grade-500-700 plus Spl.

pay Rs. 50/-

871

(iii) District Magistrate Sub Judges on-Rs. 550- 700.

Grade- Rs. 500-800.

Addl. District and Sessions

Judges and Sub-judges

Grade-Rs. 450-600,

(iv) Sub Divisional Magistrates District Munsiff and Sub

Divisional Magistrate Rs. 300-700.

I Grade-Rs. 450-600.

Munsiffs and Sub-Divisional Magistrate

Grade II on-Rs. 250-500.

(v) Sub Magistrate

Rs. 200- 300."

Sub Magistrates Rs. 200-300.

The appellant preferred an appeal against this order through

the Kerala High Court and the Government of Kerala to the

Advisory Committee constituted by the Central Government

under section, 115(5) of the Act challenging among other

things that the principles evolved for the equation, of

posts were illegal and unjust. Meanwhile the Government of

Kerala on September 24, 1959, ordered that it would not be

proper to equate the District Magistrates and the Sub-

Divisional Magistrates of Grades I and II of 'executive

origin' belonging to the erstwhile Travancore-Cochin State

with the Civil Judicial Officers and that the same should be

kept separate until the Magisterial Officers were induced

into the Civil Judiciary in the manner prescribed under

Article 234 of the Constitution. By the same order it was

provided that the three posts of the District Magistrates

(actually four since one was omitted through mistake) and

eight posts of Sub-Divisional Magistrates of the Travancore-

Cochin area would be constituted as a separate service

outside the Civil Judiciary so as to enable the incumbents

to continue in their posts (vide Ext. P-21). On the same

date, the Government of Kerala passed an order under Article

234 of the Constitution by which the salaried Magisterial

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Officers of the former Travancore-Cochin State in the

categories of District Munsiffs and Sub-Divisional

Magistrates were made eligible for appointment to the

categories of Subordinate Judges and Munsiffs respectively

(vide Ext. P-27). The appellant preferred an appeal

against the order (Ext. P-21) on October, 20 1959 (vide

Ext. P-22). He pointed out that if the aforesaid order

(Ext. P-21) was implemented there was likelihood of the

Sub-Divisional Magistrates who had got far less service than

that of the Munsiffs securing promotion over such Munsiffs.

The Kerala Government passed a final order regarding the

equation of posts in the judiciary on July 24, 1961 (vide,

Ext. P-23) and informed the appellant that the. appeals had

been rejected by the Government of India. The Government of

Kerala published the preliminary integrated list of Judicial

Officers on April 24, 1962 (vide Ext.P-24). The appellant

preferred an appeal against this list (vide Ext. P-25).

Other officers also filed representations and appeals

against the same. In the, preliminary integrated gradation

list of the Travancore-Cochin and Madras personnel as Ion

November 1, 1956, the appellant was

872

shown against serial No. 44 and his date of commencement of

continuous service as well as the date of appointment to the

post of equated category was shown as May 26, 1951.

Respondents 6 and 7 were shown below him against serial Nos.

46 and 47 respectively in the list. Their dates of

commencement of continuous service are July 20, 1951 and

October 1, 1951 respectively and the same are the dates of

appointment to the post of equated category in the list.

After publication of the preliminary integrated list, the

Government of Kerala issued two orders on May 16, 1962 and

May 10, 1963 (vide Exts. R-1 and R.2) respectively. R-2

has superseded the earlier order R-1 and some other orders.

We may quote the relevant portion of the order in Ext. R-2

which rans as follows

"The Government of India have considered the

representations of the officers and have

decided as follows :-

(i) The officers allotted to Kerala from

Madras may be allowed the benefit of emergency

service towards seniority in the equated

category if such service would have been

regularised from the- date of their emergency

appointment and counted for inter-state

seniority in integration in Madras on 1-11-

1956 had they remained in Madras.

X. x x

x

This decision of the Government of India was accepted by the

Kerala Government. On the subject of taking into account

the emergency service there was correspondence between the

Central Government and the Government of Kerala (vide Ext.

P-32 dated March 1, 1962) On the same subject matter there

were two letters from the government of Madras addressed to

the Kerala Government (vide Exts. p-34 dated July 20, 1963

and P-35 dated November 7, 1963) to the Secretary allotted

Agricultural Officers' Association, certain ad-hoc rules

(vide Ext.P-28) for absorption of Criminal side Judicial

Officers of the Travancore-Cochin Branch who' were kept in a

separate cadre. These rules inter alia provided that for

the purpose of determining seniority the date of

commencement of continuous service in the post of District

Magistrate shall be deemed to be, the date of first

appointment to, the category of Sub-Judge. The appellants'

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appeals were ultimately rejected-by the Government- of

India. On-March 26, 1966, the Government-of Kerala

published the final integrated list of the Travancore-Cochin

and Madras personnel of the Judicial Officers as on November

1, 1956 (vide Ext. P-31) showing respondents 6 and 7, who

were junior to him as per the, preliminary integrated list,

now placed above him in, the final list In the preliminary

list although his date of commencement of continuous service

was shown as May 26, 1951, he was assigned in final list

October 6, 1951 being the date of his appointment- to the

post in the equated category as on November 1, 1956. In the

above

873

background, the appellant filed a writ application in the

High, Court of Kerala praying for restraining the State

Government and the Registrar of the High Court from

implementing Ext. P-31, the final. list, and to award to

the appellant appropriate rank and seniority above

respondents 6 and 7, amongst other prayers. His application

came up before a Full Bench of the High court and the same

was rejected. The respondents were impleaded in the High

Court in a representative capacity and the High Court's

order under or.1 r.8, Civil Procedure Code, were obtained

and the notice was published in the newspaper.

Several questions were raised before the High Court, but the

appellant here has made two main submissions :

(1) His seniority in service in the

integrated judicial service in Kerala should

be counted from May, 26, 1951, the date on

which he joined service and from which he has

continuously been working.

(2) There is no justification in law for

creation of a separate cadre for Magistrates

of the executive origin and for reserving four

posts of District Magistrates, exclusively in

favour of Sub-Divisional Magistrates of

executive origin.

The appellant's grievance is that he should have been

assigned May 26, 1951 instead of October 6, 1951. It is

clear that under section 115(5) of the Act "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".

Under section 1 17 of the Act, "the Central Government may

at any time before or after the appointed day give such

directions to any .State Government as may appear to it to

be necessary for the purpose of giving effect to the

foregoing provisions of this Part and the, State Government

shall comply with such directions". In accordance with 'lie

provisions of this Act, a meeting of the Chief Secretaries

of the, various States that were to be affected by the

reorganisation, was held on May 18-19, 1956, at the

invitation of the Central Government In this meeting certain

decisions were taken as to the general principles that

should be observed with regard to the integration work. The

government-of India thereafter informed the State Government

that they had decided that the work of integration of

services should be dealt with by the State Governments in

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the light of general principles already decided in the

meaning of the Chief Secretaries. With regard

874

to the principle for,determining equation of posts and

relative seniority, the following conclusions were reached

at the conference of the Chief Secretaries :

"It was agreed that in determining the

equation of posts, ,the following factors

should be borne in mind

(i) the nature and duties of a post;

(ii) the responsibilities and powers

exercised by the officer holding a post; the

extent of territorial or other charge held or

responsibilities discharged;

(iii) the minimum. qualifications, if any,

prescribed for recruitment to the post;

(iv) the salary of the post;

It was agreed that in determining relative seniority is

between two persons holding posts declared equivalent to

each other, and drawn from different States, the following

points should be taken, into account

(i) Length of Continuous service, whether

temporary or permanent, in a particular grade;

this should exclude periods for which an

appointment is held in, a purely stop-gap or

fortuitous arrangement;

(ii) age of the person; other factors being

equal, for instance, seniority may be

determined on the basis of age.

Note : It was also. agreed that as far as

possible, the inter se senority of officer

drawn from the same State should not be

disturbed".

This position was altered as already noted earlier when the

Central Government, after considering the representations of

the officers made under section 115(5) of: the- Act decided

that "the officers allocated to Kerala State from former

Madras, may be allowed the benefit of emergency service

towards seniority in the equated category if such services

towards service(sic) would have been registered from the

date of their emergency- appointment and counted for

inter-state seniority in, integration on 1st November

1956, hadthese officers remained in Madras " (vide Ext. P-

33 dated 16-2-1963 which modified Ext. P-32 dated 1-3-1962)

We have also referred to a letter from the Government of

Madras to the Kerala Government dated to a letter from 1963 (Ext.

P34) wherefrom the following extract is relevant:-

" According to sub-paragraph (2) of

paragraph 1 of the said G.O. the date from

which an allottee to this State from the

former Travancore-Cochin State was

continuously holding the corresponding post

in the former Travancore-Cochin State is taken

into account for the purpose of fixing his

seniority in the equated cadre in this state.

Therefore for (3)of paragraph 1 of said

G.O. only continuous service

875

whether regular, temporary or emergency of the

allottees is taken into account".

Hence the position in Madras is that

continuous service of the appellant "whether

regular, temporary or emergency" would have

been taken into account for the purpose of

seniority. It is also clear and not even

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disputed that the appellant has been in

continuous service from May 26, 1951. That

being the position, the conclusion is

irresistible in view of the Government's

decision (vide Ext. P-33) that the appellant

was entitled to the assignment of May 26, 1951

for the purpose of his seniority..

Dr. Syed Mohamad, on behalf of the 1st

respondent, submits that the question has to

be decided with reference to rule 11(2) of the

Madras Rules. The same may be set out :

11(2) : "Where the appointment of a person as

District Munsiff in accordance with these

rules would involve, excessive expenditure on

travelling allowance or exceptional admi-

nistrative inconvenience, the Governor may

appoint any other person in the list of

approved candidates. A person appointed under

this rule shall not be regarded as a proba-

tioner in the service or be entitled by reason

only of such appointment to any preferential

claim to future appointment to the service".

"The High Court accepted this submission when

it observed as follows:--

"The appointment under rule 11(2) is a

temporary appointment and it is so stated in

the rule itself. Appointment under rule 11(3)

also is a temporary appointment though this

can be even of persons who do not figure at

all in any select list prepared after the

selection by die Public Service Commission. A

reading of the rule--rule 11(3) of the Madras

State Judicial Service Rules--shows that this

rule will be resorted to in cases of

emergency. Suffice to say at this stage that

service rendered in a temporary capacity by

virtue of appointments under rules 11(2) or

11(3), at any rate the whole of it, did not

necessarily count for the purpose of inter se

seniority among the persons who belonged to

the particular service in the State or Madras.

The Government of India decided that this

service which did not count for inter se

seniority among the Madras personnel in the

State of Madras and did not count for inter-

State seniority in the matter of integration

of the personnel that remained in the State of

Madras with those that have been allotted to

the State of Madras, will not count for inter-

State seniority of personnel allotted from the

State of Madras to the State of Kerala, for,

the purpose of integration with the

Travancore-Cochin personnel-".

It is true that rule in deals with temporary appointments.:

Rule 11(3), however, is not at- all relevant for the purpose

of the present case

876

The question that arises for consideration is that whether

after final allotment of the appellant under the Act to the

State of Kerala, the application of the Madras Rules would

be at all relevant in face of a clear decision of the

Government of India made under the Act. We have to hold in

the negative. Apart from that, the Government of India took

a decision which also the Kerala Government had accepted

(vide Ext. R-2) as already set out. In this view of the

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matter we are Unable to agree with the High Court that the

appellant had been correctly assigned his date October 6,

1951 instead of May 26, 1951.

It is next submitted by the learned counsel for the 1st

respondent that the appointment of the appellant was "purely

stop-gap or fortuitous arrangement" as mentioned in the

principles agreed at the meeting of ,the Chief Secretaries.

He also tries to reinforce his argument by referring to rule

11(3) which provides that "where it is necessary in the

public interest owing to an emergency which has arisen to

fill immediately a vacancy in, the category of District

Munsifs........ Assuming that rule 11(3) may be invoked and

the earlier decision of the Government of India in

conformity with the agreement of the Chief 'Secretaries

referring to "purely stop-gap or fortuitous arrangement" are

applicable, we are unable to agree that the appellant's

service is, either filled "owing to an: emergency" or that

the same is held in a "purely stop-gap. or fortuitous

arrangement". The learned counsel for the 1st respondent

followed by the counsel for the Union of India has submitted

that on account of the writ application by Venkataramana in

the High Court the appointment of the appellant had to be

made as a temporary measure as has been mentioned in the

letter of appointment itself. We are, however, unable to

accept this been appointed in a regular manner through the

Public Service Commission and his-appointment cannot by any

stretch of imagination be made to fill a "'purely stop-gap

or fortuitous" vacuum. As noticed earlier, the Government

of India has accepted the position that an allotted employee

should not suffer any disadvantage if he Would not have been

subjected to a like handicap in his parent State. It is

clear from the position taken by the Madras ' Government

that the appellant would have got the benefit of his

continuous appointment' in Madras w.e.f. May 26, 1951 (Vide

Ext. P-34). That being the position the submissions of the

learned counsel for the respondents are of no avail. we hold

that he appellant should be given the benefit of his

seniority reckoning his continuous appointment and assigning

the date. 26th May 1951 and substituting the same in the

final list for 6th October, 1951.

With regard to the. second submission of the appellant

regarding the reservation of a separate cadre e for the

District Magistrate And Sub-Divisional Magistrates of

executive origin, we do not see any force in his contention.

It is open, to the, State Government to constitute as many

cadres as they choose according to administrative

convenience and expediency .There is, therefore, no merit

in the objection to the creation of a separate cadre of

District Magistrates and sub-Divisional Magistrates of

executive origin. The submission of the appellant is

without any force.

purchases and there would be no disincentive to the- dealers

to desist from selling goods to unregistered purchasers in

course of inter-State trade. The object of' the law

apparently is to deter inter-State sales to unregistered

dealers as such inter--State Sales would facilitate evasion

of tax. [984 C]

877

With regard to Civil Appeal No. 2630 of 1969 of P. S. Menon,

Sub-Judge, Quilon, the above submissions, which we

have dealt With, were also advanced in his case. For the

same reasons, the appellant in this appeal will be entitled

to assignment of 12th February, 1955, as the date of

continuous employment of his service after allotment to the

Kerala State for the purpose of his seniority. The learned

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counsel, however, additionally contends that he should have

the benefit of what is described as the K.L.M. Principle in

the following circumstances :

One Sethu Madhavan, who is admittedly junior to the

appellant, was provisionally allotted to the State of Kerala

along with the appellant at the initial stage when the new

State was constituted. Later on however, Sethu Madhavan

arranged a mutual transfer with a Judicial Officer from

Madras who desired to take transfer to Kerala and for that

;,reason his provisional allotment was cancelled and he was

not finally allotted to Kerala. In the final integration

list Sethu Madhavan's name therefore, does not appear.

If Sethu Madhavan had remained in Kerala, the position of

the appellant in the list sight have been different, since.

Sethu Madhavan's date of continuous service is 1-7-1954.

But the final list will now have to be judged without taking

note of Sethu Madhavan who had already left the State. It

is submitted that since the final list has been prepared as

on 1-11-1956, the appellant should get the benefit of his

date. Since, however, Sethu Madhavan cannot be held be in

service in Kerala for the purpose of the final integrated

list the appellant is not entitled to assignment of his

date.

We may now describe what the K.L.M. Principle is. The

expression 'K.L.M. Principle' which came into existence in

the Travancore-Cochin State by an order dated 27th

September, 1950, has been described in the following words

by the High Court in the judgment

"The relative seniority of the Travancore and

Cochin personnel in any class or grade in the

common seniority list will be determined with

reference to the date of commencement of

continuous service in the same or similar

class or grade of posts subject, however, to

the condition that the Seniority of the

Travancore personnel as between themselves or

of the Cochin personnel as between themselves

should not thereby be disturbed".

Dealing with the point the High Court observed

as follows

"Though the said Sethu Madhavan commenced

service earlier in the State of Madras he was

admittedly junior to the petitioner and

therefore it will become necessary for

settling the inter se seniority of the

petitioner vis-a-vis Sethu Madhavan to assign

to the petitioner in integrated gradation list

a place above the said Sethu Madhavan. This

is so because the principle settled as early

as 29th December 1956 by G.O. of that date

clearly provided that in effecting, inte-

gration the inter se seniority of persons in

either branch that

878

are integrated should not be affected. The

question however cannot arise when there is no

need to fix the inter se seniority of the

petitioner vis-a-vis the said Sethu Madhavan".

We agree with the above observations of the High Court and

reject the submission of the appellant that he is entitled

to the benefit of the K.L.M. Principle on the basis of the

provisional allotment of Sethu Madhavan.

It may be mentioned that we had allowed without objection

from the respondent CMP No. 9761 of 1973 and admitted the

documents mentioned therein.

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In the result the appeals are partly allowed. The 1st and

2nd respondents are directed to assign to the appellant, C.P

Damodaran Nayar, the date May 26, 1951, by substituting the

same for October 6, 1951, in the final integration list and

to give him the consequential benefits to which he may be

entitled by virtue of this assignment'.. The aforesaid

respondents are also directed to assign to ;the appellant,

P. S. Menon, the date February 12, 1956, in the final

integration list and to give him such consequential relief

as-he may be entitled to in pursudance of the new assigned

date. The judgment of the High Court is set aside only to

the extent indicated above. The appellants are entitled to

costs in this Court. Two sets only.

Civil Appeals Nos. 304 and 305 of 1972 are identical by the

same two appellants and they'stand disposed of accordingly

by this

V.P.S. Appeals partly allowed.

879