(1.) PETITIONERS are clerks in the Agricultural Department of the State of Gujarat. In this petition, they challenge the orders, contained in three resolutions of the Government, dated 17 February 1958, 27 July 1959 and 20 July 1960. They pray that a writ of certiorari or a writ of mandamus be issued, quashing the above orders and that a direction be issued to the State that their posts should be equated to the posts of senior clerks in the same department with effect from 1 November 1956. Petition is directed against the State of Gujarat, which is respondent 3, and two Secretaries thereof, who are respondents 1 and
(2.) 2. In order to understand the controversy between the parties, it will be convenient first to mention a few admitted facts. Before 1 November 1956, petitioners were senior clerks in the Agricultural Department of the then State of Saurashtra. In that department, the clerks were divided into two categories called senior clerks and junior clerks. The pay-scale of a senior clerk was Rs. 75-3-105 E. B.-5-120. The pay-scale of a junior clerk was Rs. 40-3-70. Under the States Reorganization Act 37 of 1956 (here-after called the Act), a new State, among others, called the State of Bombay, came into existence, comprising of a number of territories including the territory of the former Saurashtra State. The territories of the new State also included some of the territories of the former Bombay State and the territories of a few other States. Under S. 115, Sub-section (1), of the Act, petitioners were allotted, by a fiction, to serve in connexion with the new Bombay State. Under S. 115, Sub-section (1), petitioners continued to hold the posts of senior clerks and, from 1 November, 1956, they were deemed to have been duly appointed to such posts. However, though this was so, the problem of integrating petitioners and all the servants of the former States, from out of which the new State of Bombay was created, arose for the consideration of the new Government. In order to solve this problem the Government first published, on 18 October, 1957, rules called the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957 (hereafter called the rules), which were framed under the powers vested in the new State under the Act read with Art. 309 of the Constitution. The steps which the new Government was required to take, in order to complete the process of integration were the equation of the old posts to new posts in the new Government, absorption of the allocated Government servants in the equivalent posts, and appointment of such servants to such posts. The new State retained the posts which were in existence in the old Bombay State. In the present petition, we are concerned with the post of senior clerks and clerks simpliciter. The pay-scale of a senior clerk, in the new State was Rs. 100-8-140 and that of a mere clerk was Rs. 46-3-85-E. B.-4-125-5 130. Therefore, the first problem which the new Government was to solve vis-a-vis petitioners, was to equate the posts of senior clerks and junior clerks in the former Saurashtra State with the posts of senior clerks and mere clerks in the new Bombay State. On 11 December 1957, the new Government of Bombay issued a circular in which they laid down the principles which were to be borne in mind in determining the equation of posts, and the principles which they laid down were four in number and they were as follows :
(1) the nature of duties of a post; (2) the responsibilities and powers exercised by the officer holding a post; extent of territorial or other charge held or the responsibilities discharged; (3) the minimum qualifications, if any, prescribed for recruitment to the post; and (4) the salary of the post. Thereafter, on 17 February 1958, the Government passed a resolution in which, after referring to the rules, they ordered that, the posts allocated from the former States, including the former State of Saurashtra, specified in Col. (2) of a statement attached to the resolution, should be deemed to be equivalent to the posts in the former Bombay State specified in Col. (4) of that statement on the pay-scales shown in Col. (5) thereof. According to this resolution, the posts of senior clerks in the former Saurashtra State were equated to the posts of mere clerks in the former Bombay State on the pay-scale of Rs. 46-3-85-E. B.-4-125-5-130. Petitioners felt aggrieved by this order, and made representations to the Chief Secretary of the new Bombay State. The main grounds urged by petitioners in support of their representations were that, the orders of the Government aforesaid embodied in the above resolutions were violative of the provisions contained in S. 116, Sub-section (1), and S. 115, Sub-section (7) the latter inasmuch as the previous sanction of the Central Government had not been obtained as required by the proviso to that sub-section. On 27 July 1959, the new Government of Bombay passed a second resolution in regard to the senior clerks of the former State of Saurashtra, by which they modified the former order. They stated that, the posts of senior clerks of the former Saurashtra State should be equated to the posts of mere clerks in the new Bombay State on the same scale as already fixed by them, but that, the stage of the pays of the incumbents of such posts should not be below Rs. 85 and, in those cases where the pays were so fixed, the incumbents of the posts should be deemed to have crossed the efficiency bar. By the same resolution, the Government also held that, the seniority of the above clerks, as on 1 November, 1956, should be fixed above all the clerks holding the posts on the scale of Rs. 46 to Rs. 130. Under S. 115, Sub-section (5) the Central Government were assigned certain functions in regard to integration and some other allied matters, in the performance of which the Central Government were given the power of establishing one or more advisory committees. Under S. 117, the Central Government were given the power to give such directions to the State Governments as might appear to it to be necessary for the purpose of giving effect to the provisions of Part X, in which S. 115 occurs. The same section cast a duty upon the State Governments to comply with such directions. Amongst the functions assigned to the Central Government was also the function of ensuring a fair and equitable treatment to all persons affected by the provisions of S. 115, and the proper consideration of any representation made by such persons. Some of the petitioners were not satisfied even by the second resolution of the Government. Therefore, they made a representation to the Central Government on 31 March 1960. Petitioners were not given any direct reply by the Central Government. But, on 20 July 1960, the Under Secretary to the State of Gujarat, which had, in the meantime, come into existence under the Bombay State Reorganization Act, 1960, communicated to the Director of Agriculture, Gujarat State, that the Government of India had carefully considered the representations of the persons, mentioned in that letter, in which were included the names of some of the petitioners, and that, on the advice of the State Advisory Committee, it had reached the conclusions noted against each of the representationists. The decision of the Central Government is embodied in a language which is not quite happy and which is grammatically incorrect, but, with the assistance of learned counsel on both sides, we are able to reproduce the language of that decision in an intelligible form, and that form is as follows :
"the Government of India have decided that as the posts held by the applicants in the former States were higher in status than those which they have in the new States, it is proper to place them above all clerks/junior clerks for the purpose of further promotions. "
(3.) SOME of the petitioners were dissatisfied even with this latest order and they made a further representation on 3 July 1961 to which, according to petitioners, they did not receive any reply up to the date of the petition. It is, thereafter, that petitioners presented the present petition.;