judgement:
Appeals Nos. 138 and 139 of 1954.
Appeals under articles 132 and 133 of the Constitution of India from the Judgment and Order, dated the 16th February, 1953, of the Court of Judicial Commissioner, Ajmer, in Civil Miscellaneous Petitions Nos. 260 and 263 of 1952.
N.C. Chatterjee (B. D. Sharma and Naunit Lal, with him) for appellants Nos. 1 and 2 in C. A. No. 138 of 1954 (Edward Mills and Krishna Mills).
Achhru Ram (B. D. Sharma and Naunit Lal, with him) for appellant No. 3 in C. A. No. 138 of 1954 (Mahalaxmi Mills).
H.N. Seervai, J. B. Dadachanji and Rajinder Narain for the appellant in C. A. No. 139 of 1954.
C. K. Daphtary, Solicitor General of India (M. M. Kaul and P. G. Gokhale, with him) for respondent No. 2 (Union of India).
October 14.
The Judgment of the Court was delivered by MUKHERJEA J.
These two appeals are directed against a common judgment, dated the 16th of February, 1953, passed by the Judicial Commissioner of Ajmer, on two analogous petitions under article 226 of the Constitution, in one of which the appellants in Appeal No. 138 of 1954 were the petitioners, while the other was filed by the appellant in Appeal No. 139 of 1954.
The petitioners in both the cases prayed for a declaration that the notification, dated the 7th of October, 1952, issued by the State Government of 738 Ajmer, fixing the minimum rates of wages in respect of employment in the textile industry within that State, under the provisions of the (Act XI of 1948), was illegal and ultra vires and for issue of writs in the nature of mandamus directing the respondents not to enforce the same against the petitioners.
To appreciate the points that have been canvassed before us, it will be convenient to narrate briefly the material facts in chronological order.
On the 15th of March, 1948, the Central Legislature of India passed an Act called The , the object of which, as stated in the preamble, is to provide for fixing minimum rates of wages in certain employments.
The schedule attached to the Act specifies, under two parts, the employments in respect of which the minimum wages of the employees can be fixed; and section 27 authorises the "appropriate Government", after giving three months ' notice of its intention to do so, to add to either part of the schedule, any other employment, in respect of which it is of the opinion that minimum rates of wages should be fixed under the Act.
The expression "appropriate Government" as defined in section 2(b) means, in relation to a scheduled employment, other than one carried by or under the authority of the Central Government, the State Government ' Under section 3 the "appropriate Government" is to fix minimum wages payable to employees employed in any employment specified in the schedule at the commencement of the Act or added to it subseq uently in accordance with the provisions of section 27.
Sub section (1) (a) of this section provides inter alia that the "appropriate Government" may refrain from fixing the minimum rates of wages in respect of any scheduled employment in which there are in the whole State less than 1,000 employees engaged in such employment.
Section 5 lays down the procedure for fixing minimum wages.
The appropriate Government can appoint a committee to hold enquiries to advise it in the matter of fixing minimum wages; in the alternative it can, by notification in the official public gazette, publish its proposals for the information of persons likely to be affected thereby.
After 739 considering the advice of the committee or the representations on the proposals as the case may be, the 'appropriate Government ' shall fix the minimum rates of wages in respect to any scheduled employment, by notification in the official gazette, and such rates would come into force on the expiry of three months from the date of issue unless the notification directs otherwise.
Section 9 provides inter alia that an advisory committee constituted under section 5 shall consist of persons nominated by the appropriate Government.
There shall be in the committee an equal number of representatives of the employers and the employed in any scheduled employment and there shall be independent persons as well, not exceeding one third of the total number, one of whom shall be appointed Chairman.
Section 30 confers on the appropriate Government the power to make rules for carrying out the purposes of the Act.
It may be mentioned at the outset that Part I of the schedule to the Act mentioned only 12 items of employment at the time when the Act was passed and employment in the textile industry was not included in Chem.
On the 16th of March, 1949, the Central Government issued a notification, in exercise of its powers under section 94(3) of the Government of India Act, 1935, directing that the functions of the "appropriate Government" tinder the , would, in respect of every Chief Commissioner 's Province, be exercised by the Chief Commissioner.
On the 17th March, 1950, the Chief Commissioner of Ajmer, purport ing to act as the "appropriate Government" of the State, published a notification in terms of section 27 of the Act giving three months ' notice of his intention to include employment in the textile mills as an additional item in Part I of the schedule.
On the 10th of October, 1950, the final notification was issued stating that the Chief Commissioner had directed "that the employment in textile industry" should be added in Part I of the schedule.
On the 23rd November, 1950, another notification was published under the signature of the Secretary to 740 the Chief Commissioner containing the rules purporting to have been framed by the Chief Commissioner in exercise of his powers under section 30 of the Act.
Out of these, only rules 3, 8 and 9 are material for our present purpose.
Rule 3 provides that the term of office of the members of an advisory committee shall be such, as in the opinion of the State Government, is necessary for completing the enquiry into the scheduled employment concerned and the State Government may, at the time of the constitution of the committees, fix a term and may, from time to time, extend it as circumstances may require.
Rule 8 provides for filling up the vacancies occurring or likely to occur in the member ship of the committee by resignation of any of its members.
Rule 9 lays down that if a member of the committee fails to attend three consecutive meetings he would cease to be a member thereof.
The rule further states that such member could, if he so desires, apply, within a certain time for restoration of his membership and restoration could be made if the majority of the members are satisfied that there were adequate reasons for his failure to attend the meetings.
On the 17th January, 1952, a committee was appointed to hold enquiries and advise the Chief Commissioner in regard to the fixation of minimum wages relating to the textile industry within the State.
Ten members were nominated consisting of four represeiitatives of the employers, four of the employees and two independent members, one of whom Shri Annigeri was to act as an expert member of the committee and the other, Dr. Bagchi, as its Chairman.
The term of office of the members was fixed at six months from the date of the notification ending on the 16th of July, 1952.
The first meeting of the committee was held on the 29th February, 1952.
The expert member was present at that meeting and it was resolved that the minimum wages must not merely provide for the bare subsistence of life but should be adequate for the maintenance of the efficiency of the worker.
The second meeting was held on the 29th March, 1952, and the third on the 14th of June, 1952.
The expert member was not present at any other meeting except the first and on the 27th of 741 May, 1952, he wrote a letter to the Chief Commissioner stating that he was proceeding to Europe on the 3rdd June, 1952, for a period of three months.
He expressed ' his willingness to assist the Chairman in the preparation of the report after he came back from Europe by the first week of September, next, provided the term of the committee was extended.
If however that was not possible, he requested that his letter might be treated as a letter of resignation from the membership of the Committee.
No action appears to have been taken on receipt of the letter.
The fourth and the fifth meetings of the committee were held respectively on the 8th and the 15th of July, 1952.
On the 20th August, 1952, the the Chairman of the Committee informed the Chief Commissioner that Shri Annigeri had ceased to be a member of the committee by reason of his failing to attend three consecutive meetings.
He had also desired that his letter to the Chief Commissioner dated the 27th May, 1952, should be treated as a letter of resignation.
In the circumstances the Chief Commissioner was requested to fill up this vacancy in the membership.
On the very next day, that is to say, on the 21st August, 1952, a notification was issued by which the Chief Commissioner ordered the extension of the term of the committee up to the 20th of September, 1952, and on the 28th of August, following, another notification was made appointing Shri Annigeri as a member of the committee.
The term of the committee was extended by a further notification till the 5th of October, 1952.
In the meantime a meeting of the committee was held on the 10th September, 1952, in which Shri Annigeri was not present.
The only resolution passed was, that all relevant papers might besent to Shri Annigeri as desired by him.
It appears that some time after the 14th of September, 1952, the Chairman himself took the papers to Nagpur where Shri Annigeri was staying and a draft final report was prepared by the Chairman in consultation with the expert member and both of them signed the report at Nagpur.
The report was placed before the other members on the 4th October, 1952, and on the 7th of October, following, a notification was issued fixing 95 742 minimum rates of wages for the employees in the textile industry in the State of Ajmer, under the signature of the Secretary to the Chief Commissioner and stating that these rates should be deemed to be in force from the 1st of September, 1952.
Feeling aggrieved by this notification the three appellants in Appeal No. 138 of 1954 presented an application under article 226 of the Constitution before the Judicial Commissioner of Ajmer on the 31st October, 1952, praying for a writ in the nature of mandamus ordering the State of Ajmer not to enforce the same.
A similar application was filed by the Bijay Cotton Mills, the appellant in the other appeal, on the 6th of November, 1952.
Both the petitions were heard together and a common judgment was passed by the Judicial Commissioner on the 16th of February, 1953.
The applications were dismissed except that the Chief Commissioner was held to have exceeded his legal authority in giving retrospective effect to the notification of the 7th of October, 1952, and the State of Ajmer, was restrained from enforcing the notification from any date earlier than the 8th of January, 1953.
It is against this judgment that these two appeals have come up to this Court on the strength of certificates granted by the Judicial Commissioner, Ajmer.
Mr. Chatterjee, appearing for the appellants in Appeal No. 138, has put forward a three fold argument on behalf of his clients.
He has contended in the first place that without a delegation of authority by the President under article 239 of the Constitution, the Chief Commissioner of Ajmer was not competent to function as the "appropriate Government" for purposes of the .
All the steps therefore that were taken by the Chief Commissioner under the provisions of the Act including the issuing of the final notification on the 7th of October, 1952, were illegal and ultra vires.
The second contention raised is that the provision of section 27 of the Act is illegal and ultra vires inasmuch as it amounts to an illegal and unconstitutional delegation of legislative powers by the Legislature in favour of the "appropriate Government" as defined in the 743 Act.
The third and the last contention is, that the Chief Commissioner had no authority to extend retrospectively the term of the Advisory Committee after it expired on the 16th of July, 1952.
Mr. Seervai, who appeared in support of the other appeal, adopted all these arguments on behalf of his client.
He however raised some additional points impeaching the constitutional validity of the itself on the ground that its provisions conflicted with the fundamental rights of the appellants and its employees guaranteed under article 19(1) (g) of the Constitution.
These points were argued elaborately by the learned counsel in connection with the two petitions filed on behalf of the Bijay Cotton Mills Ltd., and a number of employees under them under article 32 of the Constitution and we will take them up for consideration when dealing with these petitions.
We will now proceed to consider the three points mentioned above which have been raised in support of the appeals.
So far as the first ground is concerned the argument of Mr. Chatterjee in substance is that the expression "appropriate Government" has been defined in section 2(b) (ii) of the to mean, in relation to any scheduled employment, not carried on by or under the authority of the Central Government, the State Government. "State Government" has been defined in section 3(60) of the General Clauses Act as meaning, in regard to anything done or to be done after the commencement of the Constitution in a Part C State, the Central Government.
Prior to the commencement of the Constitution, under section 94(3) of the Government of India Act, 1935, a chief commissioner 's Province could be administered by the GovernorGeneral acting to such extent, as he thought fit, through a Chief Commissioner to be appointed by him in his discretion; and under section 3(8) of the General Clauses Act, as it stood before the 26th of January, 1950, the expression "Central Government" included, in the case of a Chief Commissioner 's Province, the Chief Commissioner acting within the scope of authority given to him under section 94(3) of the Government of 744 India Act, 1935.
Article 239 of the Constitution which corresponds to section 94(3) of the Government of India Act, though it is much wider in scope, provides that a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent as he thinks fit, through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State.
Agreed to this constitutional provision section 3(8 ) (b) (ii) Of the General Clauses Act, as amended by the Adaptation Laws Order, 1950, lays down that the expression "Central Government" shall include inter alia the Chief Commissioner of a Part C State acting within the scope of the authority given to him under article 239 of the Constitution.
Ajmer was admittedly a Chief Commis sioner 's Province under section 94(1) of the Government of India Act, 1935.
It has become a Part C State after the coming into force of the Constitution.
As has been stated already, the Central Government issued a notification on the 16th of March, 1949, under section 94(3) of the Government of India Act, directing that the function of the "appropriate Government" under the would, in respect of any Chief Commissioner 's Province, be exercised by the Chief Commissioner.
There was no such delegation of authority however under article 239 of the Constitution after the Constitution came into force.
Mr. Chatterjee contends that in the absence of such delegation under article 239 the Chief Commissioner of Ajmer cannot be regarded as "Central Government" as defined in section 3(8) (b) (ii) of the General Clauses Act as it stands at present and consequently he could not be held to be the "appropriate Government" within the meaning of section 2(b) (ii) of the .
The Government of India Act, it is said, stands repealed by article 395 of the Constitution.
An order issued under section 94(3) of the Government of India Act cannot possibly be operative after the inauguration of the Constitution, nor could it be regarded as an order made under article 239 of the Constitution.
The contention does not appear to us to be sound.
A complete reply to this argument is furnished, in our 745 opinion, by the provisions of clauses (1) and (2) of article 372 of the Constitution.
Article 372 runs as follows: "372.
(1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law." Thus clause (1) of the article provides for continuance, in force, of the existing laws notwithstanding the repeal by the Constitution of the enactments mentioned in article 395 and clause (2) provides for their adaptation with a view to bring them into accord with the provisions of the Constitution.
The Government of India Act, 1935, undoubtedly stands repealed by article 395 of the Constitution, but laws made thereunder which were in existence immediately before the commencement of the Constitution would continue under article 372(1) and could be adapted :under the second clause of that article.
Mr. Chatterjee argues that article 372 has no application to the present case inasmuch as the order made by the Central Government under section 94(3) of the Government of India Act could not be regarded as "a law in force" within the meaning of article 372.
A distinction is sought to be made by the learned counsel between an "existing law" as defined in article 366(10) and a "law in force" and it is argued that though an "order" can come within the definition 746 of "existing law", it cannot be included within the expression "law in force" as used in article 372.
It is argued next that even if the word "law" is wide enough to include an order, that order must be a legislative and not a mere executive order promulgated by an administrative authority, and in support of this contention the learned counsel has relied on a number of cases decided by the Privy Council and the different High Courts in India.
The first point does not impress us much and we do not think that there is any material difference between " an existing law" and "a law in force".
Quite apart from article 366(10) of the Constitution, the expression "Indian law" has itself been defined in section 3(29) of the General Clauses Act as meaning any Act, ordinance, regulation, rule, order, or bye law which before the commencement of the Constitution had the force of law in any province of India or part thereof.
In out opinion, the words "law in force" as used in article 372 are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law.
We agree with Mr. Chatterjee that an order must be a legislative and not an executive order before it can come within the definition of law.
We do not agree with him however to ' at the order made by the Governor General in the present case under section 943) of the Government of India Act is a mere executive order.
Part IV of the Government of India Act, 1935, which begins with section 94, deals with Chief Commissioners ' Provinces and sub section (3) lays down how a Chief Commissioner 's Province shall be administered.
It provides that it shall be administered by the Governor General acting through a Chief Commissioner to such extent as he thinks fit.
An order made by the Governor General under section 94(3) investing the Chief Commissioner with the authority to administer a province is really in the nature of a legis lative provision which defines the rights and powers of the Chief Commissioner in respect to that province.
In our opinion such order comes within the purview of article 372 of the Constitution and being "a law in force" immediately before the commencement of the 747 Constitution would continue to be in force under clause (1) of the article.
Agreeably to this view it must also be held that such order is capable of adaptation to bring it in accord with the Constitutional provisions under clause (2) of article 372 and this is precisely what has been done by the Adaptation of Laws Order, 1950.
Paragraph 26 of the Order runs as follows: "Where any rule, order or other instrument was in force under any provision of the Government of India Act, 1935, or under any Act amending or supplementing that act, immediately before the appointed day, and such provision is re enacted with or without modifications in the Constitution, the said rule, order or instrument shall, so far as applicable, remain in force with the necessary modifications as from the appointed day as if it were a rule, order or instrument of the appropriate kind duly made by the appropriate authority under the said provision of the Constitution, and may be varied or revoked accordingly.
" Thus the order made under section 94(3) of the Government of India Act should be reckoned now as an order made under article 239 of the Constitution and we are unable to agree with Mr. Chatterjee that it was beyond the competence of the President under clause (2) of article 372 to make the adaptation order mentioned above.
The first contention of Mr. Chatterjee therefore fails.
Coming now to the second point.
Mr. Chatterjee points out that the preamble to the as well as its title indicate clearly that the intention of the Legislature was to provide for fixing minimum wages in certain employments only and that the Legislature did not intend that all employments should be brought within the purview of the Act.
The schedule attached to the Act gives a list of the employments and it is in respect to the scheduled employments that the minimum wages are to be fixed.
Under section 27 of the Act however ' power has been given to the "appropriate Government" to add to either part of the schedule any employment in respect to which it is of opinion that minimum wages shall be fixed by giving notification in a particular manner, and 748 thereupon the schedule shall, in its application to the State, be deemed to be amended accordingly.
It is argued that the Act nowhere formulates a legislative policy according to which an employment shall be chosen for being included in the schedule.
There are no principles prescribed and no standard laid down which could furnish an intelligent guidance to the administrative authority in making the selection.
The matter is left entirely to the discretion of the "appropriate Government" which can amend the schedule in any way it likes and such delegation of power virtually amounts to a surrender by the Legislature of its essential legislative function and cannot be held valid.
There is undoubtedly an element of delegation implied in the provision of section 27 of the Act, for the Legislature in a sense, authorises another body, specified by it, to do something which it might do itself But such delegation, if it can be so called at all, does not in the circumstances of the present case appear to us to be unwarranted and unconstitutional.
It was said by O 'Connor J. of the High Court of Australia in the case of Baxter vs Ah Way (1): "The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law.
But it is not possible to provide specifically for all cases and, therefore, legislation from the very earliest times, and particularly in modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied.
" The facts of this Australian case, in material features, bear a striking resemblance to those of the present one.
The question raised in that case related to the validity of certain provisions of the Customs Act of 1901.
The Act prohibited the importation of certain goods which were specifically mentioned and then gave power to the Governor General in Council to include, by (1) ; at 637.
749 proclamation, other goods also within the prohibited list.
The validity of the provision was challenged on the ground of its being an improper delegation of legislative powers.
This contention was repelled and it was held that this was not a case of delegation of legislative power but of conditional legislation Of the type which was held valid by the Privy Council in the case of Reg vs Burah (1).
It can indeed be pointed out that in Burah 's case what was left to the Lieutenant Governor was the power to apply the provisions of an Act to certain territories at his option and these territories to which the Act could be extended were also specified in the Act.
The Legislature could be said therefore to have applied its mind to the question of the application of the law to particular places and it was left to the executive only to determine when the laws would be made operative in those places.
According to the High Court of Australia the same principle would apply even when the executive is given power to determine to what other persons or goods the law shall be extended besides those specifically mentioned therein.
Whether a provision like this strictly comes within the description of what is called "conditional legislation" is not very material.
The question is, whether it exceeds the limits of permissible delegation.
As was said by O 'Connor J. himself in the above case, when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power.
It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power.
A Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority.
The primary duty of law making has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure.
Mr. Chatterjee contends that the essential legislative function is to lay down a policy and to make it a binding rule of conduct.
This legislative policy, he says, is not discernible anywhere in the (1) 3 App.
96 750 provisions of this Act and consequently there is no standard or criterion to guide the administrative authority in the exercise of the subsidiary legislative powers.
We do not think that this is the correct view to take.
The legislative policy is apparent on the face of the present enactment.
What it aims at is the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour.
The Legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganized labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low.
It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the Legislature not to lay down at once and for all time to which industries the Act should be applied.
Conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of a particular State.
It is to carry out effectively the purpose of this enactment that power has been given to the "appropriate Government" to decide, with reference to local conditions, whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list.
We do not think that in enacting section 27 the Legislature has in anyway stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act.
The second contention of Mr. Chatterjee cannot therefore succeed.
The third and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Com missioner by which he extended the term of the Advisory Committee till the 20th of September, 1952.
It is argued that the term of the committee, as originally 751 fixed, expired on the 16th of July, 1952, and on and from the 17th of July all the members of the committee became functus officio.
The Commissioner therefore was not competent to give a fresh lease of life to the committee which was already dead.
We do not think that there is much substance in this contention.
Rule 3 of the rules framed under section 30 of the Act expressly lays down that the State Government may fix the term of the committee when it is constituted and may from time to time extend it as circumstances require.
The State Government had therefore a right to extend the term of the committee in such way as it liked.
The only question is whether it could do so after the period originally fixed had come to an end.
Mr. Chatterjee relied, in this connection,.
upon certain cases which held that the Court could not grant extension of time in an arbitration proceeding after the award was filed and an award made after the prescribed period is a nullity.
In our opinion this analogy is not at all helpful to the appellants in the present case.
It is not disputed that the committee did not function at all and did no work after the 16th of July, 1952, and before the 21st of August next when its term was extended.
No report was submitted during this period and there was no extension of time granted after the submission of the report.
Assuming that the order of the 21st August, 1952, could not revive a committee which was already dead, it could certainly be held that a new committee was constituted on that date and even then the report submitted by it would be a perfectly good report.
Quite apart from this, it is to be noted that a committee appointed under section 5 of the Act is only an advisory body and that the Government is not bound to accept any of its recommendations.
Consequently, procedural irregularities of this character could not vitiate the final report which fixed the minimum wages.
In our opinion, neither of the contentions raised in support of these appeals can succeed and both the appeals therefore should fail and stand dismissed with costs.
Appeals dismissed.

summary/full:
The words 'law in force ' as used in article 372 of the Consti tution are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law.
An order made by the Governor General under section 94(3) of the Government of India Act, 1935, investing the Chief Commissioner with the authority to administer a province is really in the nature of a legislative provision which defines the rights and powers of the Chief Commissioner in respect of that province.
Such an order comes within the purview of article 372 of the Constitution and being a 'law in force ' immediately before the commencement of the Constitution would continue to be inforce under clause (1) of the article.
Such an order is capa ble of adaptation to bring it in accord with the constitutional provisions and this is precisely what has been done by the Adaptation of Laws Order, 1950.
Therefore an order made under section 94(3) of the Government of India Act, 1935, should be reckoned now as an order made under article 239 of the Constitution and it was within the competence of the President under clause (2) of article 372 to make the adaptation order.
Under section 27 of the , power has been given to the "appropriate Government" to add to either part of the schedule any employment in respect of which it is of opinion that minimum wages shall be fixed by giving notification in a particular manner, and thereupon the scheme shall, in its application to the State, be deemed to be amended accordingly.
There is an element of delegation implied in the provisions of section 27 of the Act, for the Legislature, in a sense, authorises another body specified by it, to do something which it might do itself.
But such delegation, if it can be so called at all, is not unwarranted and unconstitutional and it does not exceed the limits of permissible delegation.
The legislative policy is apparent on the face of the present enactment.
What it aims at is the statutory fixation of minimum wages with a view to obviate the chances of exploitation of labour.
It is to carry out effectively the purposes of the enactment that power has been given to the appropriate Government to decide with reference to local conditions whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list.
Therefore in enacting section 27 the legislature has not stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act.
Rule 3 of the rules framed under section 30 of the Act empowers the State Government to fix the term of the committee appointed under section 5 of the Act and to extend it from time to time as circumstances require.
The period originally fixed had expired and its term was extended subsequently.
It did not function and submitted no 737 report during the period.
Assuming that the subsequent order could not revive a committee which was already dead, a new committee could be held to have been constituted and the report, submitted by it would be a perfectly good report.
Apart from this, a committee is only an advisory body and procedural irregularities of this character could not vitiate the final report which fixed the minimum wages.
Baxter vs Ah Way ; and Reg.
vs Burah (3 App.
Cas. 889) referred to.


judgement:
ons for special leave to Appeal (Civil) Nos.
2430, 2431, 2436 to 2438, 2442 2443.
2445, 2446, 2472 and 2480 of 1969 and 3 of 1970.
From the orders dated December 8, 1969 of the Madras High Court in Civil Misc.
Petitions Nos.
15375 of 1969 etc.
in Writ Appeals Nos.
519 of 1969 etc.
K. K. Venugopal and R. Gopalakrishnan, for the petitioner (in S.L.P. Nos.
2430, 2431 and 2438 of 1969).
section Mohan Kumaramangalam, M. K. Ramamurthi, G. Ramaswamy, Shyamala Pappu and Vineet Kumar, for the petitioners (in S.L.P. No. 2436 of 1969).
M. K. Ramamurthi, G. Ramaswamy, Shyamala Pappu and Vineet Kumar, for the petitioner (in S.L.P. No. 2437 of 1969).
A. section Nambiar, for the petitioner (in S.L.Ps.
2442, 2443 and 2472 of 1969).
496 M. C. Setalvad, V. Subramanian and K. Jayaram, for the petitioner (in S.L.P. Nos. 2445, 2446 and 2480 of 1969 and 3 of 1970).
Madan Mohan for respondent No. 1 (in S.L.P. Nos.
2430, 2431, 2436, 2437, 2438, 2442, 2443 and 2472 of 1969).
O. C. Mathur, for respondent No. 1 (in S.L.P. No. 2445 of 1969).
R. Gopalakrishnan, for respondent No. 1 (in S.L.P. No. 2480 of 1969).
K. Thirumalai, A. T. M. Sampath and E. C. Agrawala, for respondent No. 1 (in S.L.P. No. 3 of 1970).
The Order of the Court was delivered by Hidayatullah, C.J. These are petitions for special leave against the orders of the Division Bench of the High Court of Madras by which the High Court has ordered that the permits granted by the Regional Transport Authority will operate and not those which the State Transport Appellate Tribunal in appeal granted.
The facts may be stated, taking as a sample, Special Leave Petition No. 2430 of 1969.
The original grantee of the permit by the Regional Transport Authority may be described as 'A '.
The date of the grant was November 20, 1966.
On appeal by the respondent who may be described as 'B ', the State Transport Appellate Tribunal cancelled the grant made to A by the Regional Transport Authority.
This was on July 18, 1967.
A writ petition was thereupon filed by A and it was allowed by the learned single Judge on November 4, 1969 and the order of the State Transport Appellate Tribunal was quashed.
When the matter went before the Letters Patent Bench, it was observed that in view of the fact that only the grantee of the Regional Transport Authority had a valid permit, it was not possible to grant any permit to B who was recognised by the State Transport Appellate Tribunal.
They followed an earlier ruling of the court and restricted the grant pending disposal of the Letters Patent appeal to the grantee of the Regional Transport Authority who alone was permitted to operate on the route.
It appears that only one operator could be allowed on this route, because of a section 47(3) determination.
In these petitions for special leave which are ex facie against the orders made in interlocutory proceedings, the attempt is to get the permits restored to B.
It is claimed that this involves a question of jurisdiction and that question is whether the High Court could recognise A the grantee of the Regional Transport Authority when his permit had been cancelled by the State Transport Appellate 497 Tribunal.
We think that these are matters into which this Court cannot be invited to go under article 136 of the Constitution, because the appeal itself is pending before the High Court and what the High Court has done is to give effect to the order of the learned single Judge.
In other words, the Letters Patent Bench has not attempted to pass any special order of its own staying the operation of the decision of the learned single Judge.
We think it would be wrong for us to interfere at this stage.
It may be that the question may come up in some other form before us when the appeals from the Letters Patent decision are brought before this Court.
If and when this happens, we may find it convenient to express our opinion on the question of jurisdiction of the High Court to go into such matters in appeal or in original writ petitions.
Beyond this, we do not wish to express any opinion, one way or the other, at this stage.
We accordingly order the dismissal of these special leave petitions, reserving to the petitioners the right to raise such questions as may legitimately be raised when they choose to file appeals against the decision of the Letters Patent Bench.
Stay granted by this Court is vacated.
V.P.S. Special Leave Petitions dismissed.

dataset_name: IN-Abs

summary/full:
The Regional Transport Authority granted to the respondent a permit to operate a bus on a route.
The grant was set aside by the State Transport Appellate Tribunal on appeal filed by another applicant.
The order of the S.T.A. was quashed by a Single Judge of the High Court in a writ petition filed by the grantee from the R.T.A.
When the matter went before the Letters Patent Bench it was observed that since only the grantee from the R.T.A. had a valid permit it was not possible to grant any permit to the appellant before the S.T.A. pending the disposal of the Letters Patent Appeal as only one operator could be allowed on the route.
In the petition for special leave to appeal to this Court under article 136 against the interlocutory order, on the question of the jurisdiction of the High Court to recognise the grantee from the R.T.A. when his permit was cancelled by the S.T.A., HELD: This Court would not go into the matter at this stage because the appeal itself was pending before the High Court and all that the Bench had done was to give effect to the order of the Single Judge pending disposal of the appeal.
[497 A B]


judgement:
minal Appeal No 159 of 1967.
491 Appeal by special leave from the judgment and order dated April 28, 1967 of the Allahabad High Court in Criminal Appeal No. 2195 of 1964.
Anil Kumar Gupta, R. A. Gupta and Uma Datta, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
The appellants are five in number who were prosecuted originally with.
11 others under diverse sections of the Indian Penal Code which included sections 147 and 148 of the Indian Penal Code and sections 333 and 353 read with section 149 of the Indian Penal Code.
of the original 16 accused in the case, 11 were acquitted in the Court cf Session.
The High Court, on appeal, confirmed their convictions with some modifications and reduced the sentences passed on them.
As a result of the High Court 's judgment, one of the appellants Gopi stands convicted under section 326 of the Indian Penal Code with a sentence of six months ' rigorous imprisonment and under section 148 of the Indian Penal Code with a like sentence, the two sentences of imprisonment to run concurrently.
Others are convicted only under s.147 of the Indian Penal Code and have been sentenced to imprisonment already undergone by them which we are told was in the neighbourhood of two weeks.
They now appeal by special leave against their conviction and sentences.
The facts of the case are as follows.
In November 1963 a she buffalo belonging to one Rajbir of village Chhainsa, police station Chhainsa in the district of Gurgaon (then a part of Punjab and now a part of Haryana) was stolen.
Rajbir 's suspicion was that the appellants Gopi and Munshi had stolen the buffalo and that they were keeping it in village Gunpara, police station Dankaur in Bulandshahr district in Uttar Pradesh.
There are certain allegations that Gopi and Munshi demanded a sum of Rs. 200 for the return of the buffalo, that the amount was paid but the buffalo was not returned.
We are not concerned with the truth of this statement.
A report of theft of buffalo was lodged at police station Chhainsa on November 26, 1963.
The report was sent to Sub Inspector Kesar Singh (P.W. 1) who was then at another village and he proceeded in the company of three constables and some other villagers to Gunpara.
From the village he took with him two other persons Rajey and Chander.
The police party was armed with rifles.
a revolver and lathis.
They reached the house of Gopi and Munshi at about 11 30 p.m. and found them sleeping in front of their house.
Gopi and Munshi were woken up by the police and were informed that the police party had come to search 492 for the buffalo.
The prosecution case is that Gopi and Munshi thereupon raised a hue and cry that the police party had arrived and on that the appellants and some other persons violently attacked the police party causing simple injuries to Kesar Singh, Mohan Singh and Sri Ram of the police force and grievous injury to Jodhra Ram.
The injury to Jodhra Ram was caused with a farsa on the head and had fractured his skull.
Later, the police party, when it was withdrawing, was again waylaid and the allegation is that Kesar Singh was wrongfully confined at Naurangpur.
He was then rescued 'by Mulaim Singh, a constable of police station Dankaur and Kesar Singh then went to Gunpa a where he made a report to the police station officer Dankaur who had by that time returned.
It may be mentioned that on behalf of the appellants a report was also lodged at police station Dankaur at 4 a.m. on the night of the occurrence, complaining that a dacoity was attempted to be committed at the house of Gopi and Munshi by some persons who were dressed in police uniform.
Investigation then followed and the appellants with 11 others who have since been acquitted were prosecuted.
The High Court considered whether the action of Kesar Singh in conducting the search outside the limits of his police station house was bona fide or under colour of office.
It gave a finding that it was ,not bona fide because Kesar Singh could have easily asked the police station house officer of Dankaur to conduct the search under section 166(1) of the Code of Criminal Procedure.
His explanation that the police at Dankaur were mixed up with the appellants ' party was considered a lame excuse.
However, the High Court felt that the action of the appellants was criminal because they knew that it was a police party.
In this appeal, the appellants had earlier undertaken to this Court that they would argue a pure point of law and that the record therefore need not be printed.
As a result, there is no evidence before us.
All that we have is the copy of the judgment of the High Court and the special leave petition with the grounds on which this appeal is to be argued.
The only question of law argued on behalf of the appellants is that the search was illegal and therefore the appellants had every right to resist it and further that they resisted the search party in the exercise of the right of private defence, thinking that the raiding party were decoits dressed in police uniforms.
As to the knowledge of the appellants about the identity of the raiding party, we have had the evidence of the witnesses read to us.
It is quite clear from that evidence that the sub inspector Kesar Singh had communicated to Gopi and Munshi that this was a raid by a police party who were out to search the premises for 493 the missing buffalo.
Therefore, the statement of the appellants that they took the raiding party to be dacoits is not true and we do not, therefore, believe it.
The argument, however, was raised that under section 165, the powers of search of station house officer are limited to the limits of his police station and he cannot make a search within the jurisdiction of another police station house officer.
Reliance was placed upon the provisions of section 165 to establish this.
There is no doubt that that is the normal and ordinary provision of the Code but then there is section 166 also to be read.
Under sub section 1 of that section a police officer may invoke the assistance of a police station house officer of another jurisdiction and ask him to conduct the search.
It is submitted that this is what the, sub inspector Kesar Singh ought to have done.
The powers of the police station house officer, however, are not confined to this only because sub section
3 of the same section gives the right and authority to the police station house officer to conduct search in the jurisdiction of another police station house officer if he has reason to believe that delay would be occasioned by requiring the officer in charge of the other police station to cause the search to be made and as a result evidence of the commission of the offence would be concealed or destroyed.
This is what the sub inspector Kesar Singh seems to have done.
His explanation was that the police of Dankaur were mixed up with the accused who had stolen the buffalo and therefore he took it upon himself to conduct the search and recover the buffalo.
The explanation in our opinion is believable because no police officer would ordinarily go into another jurisdiction unless there, are compelling reasons to do so.
A buffalo had been stolen a few weeks before and nothing had been done to recover it.
In these circumstances the sub inspector Kesar Singh might well have believed that unless he took some instant action, the buffalo would never be found.
Therefore his action was with due care and attention and cannot be said to be mala fide.
It was argued however that the sub section is limited to avoidance of delay and there was no case made out here that there was likelihood of delay it the police station house officer of Dankaur had been invited to conduct the search.
In our opinion in the case of stolen cattle, time is of the essence, because once the animal is removed and mixed up with others, it is very difficult to spot it in the big herds common in these places.
Therefore if the police officer had reason to believe that the police officers at Dankaur would take their own time because they were mixed up with the accused party, he had full jurisdiction in taking recourse to sub section
(3) of section 166 and to carry out the search himself.
It was contended before us that he ought to have recorded his reasons in writing as required by section 165 and also by section no question appears to have been put to the sub inspector to elicit from him whether the reasons were recorded or not.
Regard being had to the regularity of official acts, we are entitled to presume that the sub inspector must have taken the precaution to record his reasons.
In any event, we cannot hold this against the prosecution, because there is no material on which we can proceed.
We are therefore satisfied that the search in this case was bona fide and was conducted legally by Kesar Singh in another jurisdiction, because be had reason to believe that evidence, namely, the buffalo was likely to be lost if he did not take prompt action.
The accused were informed by him that it was the police party which had come and they had no reason to attack the police party either as dacoits or in self defence in any other form.
The offence of the appellants is therefore amply brought home to them.
We see no reason to interfere.
The appeal fails and will be dismissed.
G.C. Appeal dismissed.

summary/full:
On the basis of a First Information Report regarding loss of a buffalo lodged at police station, Chhainsa, the Sub Inspector of that police station sought to search the house of the appellants situated in the jurisdiction of police station, Dankaur.
The appellants and several others resisted the search and caused injuries to the police party, for which they were prosecuted under various sections of the Indian Penal Code.
The appellants along with certain others were convicted by the trial court and their appeals were disallowed by the High Court.
By special leave they appealed to this Court, contending : (i) that the officer of a police station cannot carry out a search in the jurisdiction of another police station without the permission of the Station House Officer of that station; in the present case the reason given by the Sub Inspector for not taking such permission, namely, that the local police was in league with the appellants did not satisfy the terms of section 166(3) of the Code of Criminal Procedure; (ii) that the search was also illegal for the reason that the Sub Inspector before attempting the search did not record his reasons as required by sections 165 & 166 of the Code; (iii) that being illegal the search was not bona fide. (iv) that the appellants were entitled to the right of private defence since they thought that the raiding party were decoits dressed as policemen.
HELD : (i) In the case of stolen cattle, time is of the essence, because once the animal is removed and mixed up with others, it is very difficult to spot it in the big herds common in these places.
Therefore if the police officer had reason to believe that the police officers at Dankaur would take their own time because they were mixed up with the accused party, he had full jurisdiction in taking recourse to sub section
(3) of section 166 and to carry out the search himself.
[493 G H] (ii) No questions were put to the Sub Inspector to elicit from him whether the reasons for the search were recorded or not.
Regard being had to the regularity of official acts it must be presumed that the Sub Inspector must have taken the precaution to ',record his reasons.
[494A] (iii) In the circumstances of the case the search was legal and bonafide.
[494 B] (iv) The accused were informed by the Sub Inspector that it was the police party which had come and they had no 'reason to attack the police party either as dacoits or in self defence in any other form.
[494 C]


judgement:
Appeal No. 458 of 1969.
Appeal from the judgment and order dated July 1, 1968 of the Gujarat, High Court in Special Civil Application No. 1499 of 1966.
517 M. C. Chagla, section K. Dholakia, Vineet Kumar and J. R. Nana vati, for the appellants.
section T. Desai, B. D. Sharma and section P. Nayar, foe respondent No. 1.
section section Shukla, for respondents Nos. 2 to 148.
The Judgment of the Court was delivered by Shah, J.
Certain officers in the ministerial branch of the Secretariat Service of the State of Gujarat moved a petition in the High Court of Gujarat for an order directing the State Government to treat its order dated August 19, 1966 as "illegal, void and of no effect" and to forbear from enforcing its order treating the persons whose names were specified in the annexure to the order as servants of the "Secretariat cadre".
The High Court of Gujarat granted the petition and declared the order dated August 19, 1966, invalid.
With certificate granted by the High Court this appeal has been filed.
Prior to November 1, 1956, the appellants were holding permanent posts in the ministerial service of the Secretariats of the Part B State of Saurashtra and the State of Kutch.
By virtue of section 8 of the States Reorganization Act 37 of 1956 the new State of Bombay, which included the territories of the States of Saurashtra and Kutch, was formed.
Section 115 of the made provisions relating to services other than All India Services.
By sub section
(1) of section 115 it was enacted, inter alia, that every person who immediately before the appointed day was serving in connection, with the affairs of any of the existing States specified therein shall, as from that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State.
By the proviso to sub section
(7) it was provided that conditions of service applicable immediately before the appointed day to the case of any person allotted to another State shall not be varied to his disadvantage except with the previous approval of the Central Government.
Section 116 provided for the continuance of officers in the same posts.
By section 117 power was conferred upon the Central Government to give directions to Any State Government that may appear to be necessary for the purpose of giving effect to the provisions of sections 114,115 and 116 of the Act.
Under the , the appellants were allotted to serve in connection with the affairs of the new State of Bombay.
In exercise of the powers under article 309 of the Constitution, the Government of Bombay sanctioned certain rules called "The Allocated Government Servants ' (Absorption, Seniority, Pay & Allowances) Rules, 1957".
Those rules governed the servants who were allotted to the State of Bombay on reorganisa 518 tion.
A large majority of the members of the ministerial branch of the Secretariat of the States of Saurashtra and Kutch were, it appears, unwilling to be posted in the Secretariat of the new State of Bombay.
They were accordingly posted in the districts of the former States of Saurashtra and Kutch.
Under Act 11 of 1960 called "The Bombay Reorganisation Act" the States of Gujarat and Maharashtra were carved out of the territory of the new State of Bombay.
Under section 81 provisions relating to services other than All India Services were made and by section 82 provisions as to the continuance of officers in the same posts was made.
By section 83 power was given to the Central Government to give directions to the States.
Those provisions were substan tially the same as the provisions of sections 115, 116 and 117 of the .
The appellants were allotted to serve in connection with the affairs of the State of Gujarat under section 81 of the Bombay Reorganisation Act.
The newly constituted State of Gujarat finding a dearth of experienced officers in the Secretariat transferred the appellants at ,diverse times between the years 1961, 1962 and 1963 to the Secretariat of the State of Gujarat and 'assigned them duties in connection with the Secretariat Service.
Orders were issued from time to time fixing their scales of pay and seniority.
Apparently the Public Service Commission raised some objections about an attempted integration between the officers who were originally serving in the Secretariat Service, and those who were posted from the districts.
Ultimately on August 19, 1966, the State Government issued the order to the following effect : "The question of regularising the appointment to various posts in the Secretariat Department on and after 1st May 1960 of the drafted persons was under the consideration of Government for some time.
Government is now pleased to direct, in consultation with the Gujarat Public Service Commission, that the persons shown in the accompanying statement should be treated to have been regularly appointed in the posts shown against their names in column 4 of the statement with effect from the date shown in column 5 in the Departments mentioned in column 3 of the statement.
As regards fixation of their pay and seniority orders have already been issued in Government Resolution General Administration Department No. SCT 1161 F, dated 25th April, 1961 and Government Reso lution General Administration Department No. SCT1162 KH, dated 14th March 1964.
The Departments are requested to fix their pay and seniority accordingly.
" 519 Appended to the order was a list of 90 persons designating the departments in which they were posted, posts to which appointed and the dates from which they were appointed.
The officers of the Secretariat who before the date of the order constituted the ministerial service then filed the petition out of which this appeal arises challenging the validity of the order of the Government.
The petition was ,founded on three grounds : (1) that the order violated r. 138 of the Recruitment Rules framed by the Government of Bombay in 1957; (2) that the order violated the proviso to cl.
(6) of section 81 in that it altered the conditions of service of the applicants; and (3) that it violated the provisions of the Allocated Government Servants ' (Absorption, Seniority, Pay & Allowances) Rules, 1957.
Counsel for the applicants conceded before the High Court that the transfer of the former Saurashtra and Kutch States Secretariat personnel to the Gujarat Secretariat per se was not open to objection.
The High Court did not consider whether the Saurashtra and Kutch States secretariat personnel had "any rights flowing on account of absorption and integration of service under the or the Allocated Government Servants ' Rules,, 1957.
" But the High Court held that since the impugned order purported to amalgamate the former Saurashtra and Kutch States personnel with the Gujarat Secretariat Service contrary to the terms of r. 138 of the Recruitment Rules, and the Government had no authority to vary the method of recruitment provided by the statutory r. 138 of the Recruitment Rules which was mandatory, the orders of transfer to the Secretariat which was not made in the process of integration could not operate as absorption under the Allocated Government Servants ' (Absorption, Seniority, Pay & Allowances) Rules, 1957.
The High Court also observed that when the ministerial service employees of the former Saurashtra and Kutch States Secretariats were absorbed in the districts, integration of the services was complete and any transfer thereafter to the Secretariat could not and did not amount to absorption in equivalent posts.
It is necessary first to examine the scheme of sections 115 & 116 of the .
Section 115 was intended to provide for the conditions of service of employees who immediately before November 1, 1956 were serving in connection with the affairs of a State and were allotted to serve in connection with the affairs of another State.
Power to fix the conditions of service was reserved exclusively to the Central Government.
For that purpose the Central Government was authorised to establish one or more Advisory Committees to 'advise the Government on the division and integration of the services in the new States and for ensuring fair and equitable treatment to all persons affected by the 520 provisions of section 115 and for proper consideration of any representation made by those persons.
By the proviso to sub section
(7) section 115 a guarantee was given to every allotted public servant that his conditions of service shall not be varied to his disadvantage except with the previous approval of the Central Government.
Section 116 provided for the continuance of officers in equivalent posts.
This Court in N. Raghavendra Rao vs Deputy Commissioner, South Kanara, Mangalore(1) held that the effect of sub section
(7) of section 115 is to preserve the power of the State to make rules under article 309 of the Constitution, but the proviso imposes a limitation on the exercise of that power; the limitation is that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in sub sections
(1) & (2) of section 115.
In the view of the Court the broad purpose underlying the proviso to section 115 (7) of the Act was to ensure that the conditions of service shall not be changed except with the prior approval of the Central Government, that is, before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government.
In Union of India & Anr.
vs P. K. Roy & Ors.
(2) this Court held that it is the duty of the Central Government to integrate the services, but the State may be asked to prepare a provisional gradation list provided.
the Central Government maintains its control over it.
It is clear that the conditions of service applicable immediately before the appointed day in the case of any person who is allotted to another State cannot be varied to his disadvantage except with the previous approval of the Central Government.
This protection could not be removed by the rules made by the State subsequent to November 1, 1956, unless the previous approval of the Central Government was obtained thereto.
It is true that the ministerial service personnel in the States of Saurashtra and Kutch, after they were allotted to the State of Bombay were posted and assigned duties in various districts in Saurashtra and Kutch.
But in the absence of evidence to show that the previous approval of the Central Government was obtained, their right to be absorbed in equivalent posts in the new State of Bombay and later in the State of Gujarat was not thereby affected.
It appears that there has riot been any equivalence established between the posts in the Secretariats.
of the States of Saurashtra and Kutch and the posts in the new State of Bombay and: later in the State of Gujarat to which the members of the ministerial service of the Secretariats of former Saurashtra and Kutch States were allotted.
The mere fact that they were posted (1) ; (2) ; 521 and continued to render service in the Districts will not, in our judgment, affect the right of the personnel to be absorbed in the equivalent posts in the Secretariat and on terms not disadvanta geous to those they were already entitled except with the previous, approval of the Central Government.
It was conceded, and rightly, that the State has the authority to transfer, subject to the Constitution and the rules made under article 309 any public servant to render service which by his training and aptitude he was competent to do.
Transfer of the personnel from the States of Saurashtra and Kutch to the Secretariat in the State of Gujarat and assignment of duties performable by the ministerial staff in the Secretariat cannot be challenged, and that because they were posted between 1956 and 1960 in the Districts they will not be deprived of their statutory right under section 115(7) proviso.
Posting in the districts was and must remain purely provisional, until final integration is made by the Central Government.
It is common ground that no such final integration had been made by the Central Government.
Two grounds appealed to the High Court in deciding the case against the appellants : (1) that the appellants were transferred to the Secretariat of the State of Gujarat, but they were not absorbed in the ministerial service of the Secretariat of the State of Gujarat.
In the view of the High Court there was merely "regularisation" of the appointment of those persons for the purpose of performing service in the Secretariat; and (2) that the order dated August 19,.
1966 was contrary to the Recruitment Rules, 1957.
If it be granted that the State was competent 'to transfer and did transfer the appellants to perform service in connection with the affairs of the State in the Secretariat, it is difficult to hold that when the State "regularised" the service of the appellants in the Secretariat with the consent of the Public Service Commission there was no absorption under the Absorption Rules.
It is true that the expression "absorption" has not been used in the order, but that will not justify an inference that there was no intention to absorb the former Saurashtra and Kutch States personnel in the Secretariat.
In the absence of determination of equivalent posts under the orders of the Central Government, the State of Gujarat was competent, as a matter of provisional arrangement to absorb the former Saurashtra and Kutch States personnel in the ministerial establishment of the Gujarat State Secretariat.
In terms the order says that the persons named therein "should be treated to have been regularly appointed in the posts shown against their names in column 4 of the statement" appended to the order.
That, in our judgment, amounted to absorption.
522 Original r. 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939, was deleted and the following rule was substituted on May 22, 1957.
The relevant part of the rule reads "138.
The ministerial staff in the Secretariat and attached offices is divided into two Divisions.
(a) Upper; and (b) Lower.
(i) Superintendents : Appointments shall be made by promotion from among Senior Assistants.
(ii) Senior Assistants : Appointments shall be made by promotion from among Junior Assistants.
(iii) Junior Assistants : Appointments shall be made either : (a) by nomination on the results of a competitive examination held by the Bombay Public Service Commission, or (b) by promotion from among members of the Lower Division.
Provided that ,not more than one out of every four vacancies in the posts of Junior Assistants shall ordinarily be filled by promotion.
(2) To be eligible for appointment by nomination a candidate must (i) hold a degree in Arts, law, science, Agriculture or commerce of a recognised University or possess an equivalent qualification; (ii) have attained the age of 18 years; and (iii) not have attained the age of 30 years in the case of members of the Lower Division appointed on the recommendation of the commission and who have graduated while in service and in any other case 24 years on the first day of the month immediately following month in which the posts are advertised by the Commission.
B. Lower Division (b) Clerks, clerk typists, typists : Appointments shall be made by nomination on the results of a competitive examination held by the Commission.
523 Provided that suitable members of Class IV services who while in that service, have passed the Secondary School Certificate Examination or an examination recognised by Government as equivalent to that examination, shall be eligible for appointment to the posts of clerks by promotion.
(2) To be eligible for appointment by nomination, a candidate must . (i) have passed the secondary school certificate exa mination or an examination recognised by Government as equivalent to that examination; (ii) have attained the age of 18 years; and (iii) not have attained the age of 23 years on the first day of the month immediately following the month in which the posts are advertised by the Commission.
A candidate for the post of clerk typist or typist must, also be able to type neatly and accurately at a minimum speed of 40 words per minute.
The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of the Lower Division, nomination being on the result of a competitive examination held by the Public Service Commission and promotion being from the subordinate staff.
In view of this rule, according to the High Court, it was not open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.
Counsel for the appellants contended that r. 138 only dealt with the existing servants and did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat.
He also contended that the recruitment did not amount to admission of an officer for the first time in the service.
It is unnecessary for the purpose of this appeal to consider these arguments.
Assum ing that r. 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired under the , to hold posts in the 'new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was 524 obtained, disadvantageous.
Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision, it is not open to the officers of the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officers in the Secretariat performing ministerial duties.
The appeal must therefore be allowed and the order passed by the High Court must be set aside.
The petition filed by the respondents Nos. 2 to 148 will stand dismissed.
There will be no order as to costs throughout.
G.C. Appeal allowed.

summary/full:
Prior to November 1, 1956 the appellants were holding permanent posts in the ministerial service of the Secretariats of the Part B State of Saurashtra and the Part C State of Kutch.
By virtue of section 8 of the States Reorganisation Act 37 of 1956 the new State of Bombay which included the territories of the States of Saurashtra and Kutch was formed.
Under section 115(1) of the Act the appellants were allotted to serve in connection with the affairs of the new State of Bombay.
BY the proviso to, section 115(7) it was provided that 'conditions of service applicable immediately before the appointed day to the case of any person allotted to another State shall not be varied to his disadvantage except with the previous approval of the Central Government '.
Section 116 provided for the continuance of officers in equivalent posts.
By section 117 power was conferred upon the Central Government to give directions to State Governments for the purposes of sections 114, 115 and 116.
The Act authorised the Central Government to establish one or more Advisory Committees to advise the Government on the division and integration of the services in the new States and for ensuring fair and equitable treatment to all persons affected by the provisions of section 115 and for proper consideration of any representation made by those persons.
A large majority of the members of the ministerial branch of the Secretariats of the State of Saurashtra and Kutch were unwilling to be posted in the Secretariat of the new State of Bombay.
A large majority out of them including the appellants were accordingly posted in the districts of the former States of Saurashtra and Kutch.
Under the Bombay Reorganisation Act 11 of 1960 the States of Gujarat and Maharashtra were carved out of the territory of the new State of Bombay.
Sections 81, 82 and 83 of the 1960 Act were substantially the same as Ss. 115, 116 and 117 of the 1956 Act.
The services of the appellants were under section 81 of the Act allotted to the newly constituted State of Gujarat.
The State of Gujarat transferred the appellants from the districts to the Secretariat.
After consulting the Public Service Commission it issued on August 19, 1966 an order "regularising" the services of the appellants and fixing their pay and seniority.
The officers of the Secretariat who before the, passing of the said order constituted the ministerial service filed a petition in the High Court challenging its validity.
The High Court allowed the petition mainly on two grounds, namely : (i) that the appellants were not absorbed in the ministerial services of the Secretariat within the meaning 516 of the Bombay Allocated Servants ' (Absorption, Seniority, Pay and Allowances) Rules, 1957; (ii) that r. 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939 as amended in 1957 allowed recruitment to the Ministerial Staff of the Secretariat by nomination after an examination or by promotion from the Lower Division and it was not open to the Government to adopt any other method.
The High Court 's ,,decision was challenged in appeal before this Court.
The Court noted that no equivalence had been established between the ,posts in the Secretariats of the States of Saurashtra and Kutch and the posts in the new State of Bombay or later in Gujarat and that there had been no integration of the services by the Central Government.
It was conceded before the Court that the State had the authority to transfer, subject to the Constitution and the rules made under article 309, any public servant to render service which by his training and aptitude he was competent to do.
HELD : (i) The fact that the expression 'absorption ' had not been used in the impugned order would not justify the inference that there was no intention to absorb the former Saurashtra and Kutch State personnel in the Secretariat.
[521 F] In the absence of determination of equivalent posts under the orders of the Central Government, the State of Gujarat was competent, as a matter of provisional arrangement to absorb the former Saurashtra and Kutch States personnel in the ministerial establishment of the Gujarat State Secre tariat.
In terms the order said that the persons named therein "should be treated to have been regularly appointed in the posts shown against their names in column 4 of the statement" appended to the order.
That clearly amounted to absorption.
[521 G H] (ii) The High Court was wrong in holding that the impugned order was bad because it contravened r. 138 of the Recruitment Rules.
Assuming that r. 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired under section 115(7) of the to hold posts in the new State which we re equivalent and on terms which were not, unless previous approval of the Central Government was obtained, disadvantageous.
Since the arrangement which was made by the Gujarat Government must be regarded as provisional and to ensure so long as the Central Government did not make a final decision, it was not open to the officers of "the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officer of the Secretariat performing ministerial duties. ' [523 G 524 B] N. Raghavendra Rao vs Deputy Commissioner, South Kanara, Mangalore, ; and Union of India & Anr.
vs P. K. Roy & Ors.
; , applied.