James Lian Mowia vs The Union Territory of Mizoram and Others

B.L. Hansaria, J.—A Division Bench of this Court having desired, in view of the stand taken by this Court in Civil Rule No. 620172 (L Sailo v. Union Territory of Mizoram disposed of on 27.4.76) on the question set put below that it be examined by a larger Bench, the matter has been placed before us on the order of the Hon''ble the Chief Justice. We desired the assistance of the Advocate Generals of Assam and Meghalaya also but could receive the assistance of the latter only. The question referred reads as below:

Who would be the employer of a person who immediately before the appointed day was holding or discharging duty in connection with the affairs of the existing State of Assam and which duty became a duty in connection with the affairs of the State of Meghaiaya or administration of the Union Territory of Mizoram if the person concerned continued to hold the post despite any allocation order relating to him not having been passed.

The question arises out of the, provisions of the North-Eastern Areas (Reorganisation) Act, 1971, hereinafter the Act, which had made 21st January, 1972, the appointed day and provided for establishment, on and from that date, of the States of Manipur and Tripura formation of a full-iledged State of Meghalaya and Union Territories of Mizoram and Arunachal Pradesh by reorganising the existing State of Assam.

Part VIII of the Act deals with the provisions as to services, and it has a scientific scheme. Section 61 has dealt with the Central Services like the Indian Administrative Service, Indian Police Service and the Indian Forest Service and has provided for "Joint cadrs" of the same States. Section 62 has dealt with the persons who were in the services of the Union Territorial of Manipur and Tripura before the appointed day has provided that unless otherwise directed by an order of the Central Government such persons "shall be deemed to have been allocated for service...in connection with the affairs of the State of Manipur or, as the case may be, of the State of Tripura". We are not concerned with section in the present case. Section 64 is material for our purpose and has to be read in full:

(1) Such persons serving in connection with the affairs of the existing State of Assam (including person borne on any cadre of that State and serving under the Government of the autonomous State of Meghalaya or on deputation to any other Governmeat or authority) as may be determined at any time before or after the appointed day-

(a) by agreement between the Government of the existing State of Assam and the Government of the autonomous State of Megbalaya or between the Government of the State of Assam and the Government of the State of Meghalaya, as the case may be, or

(b) in default of any such agreement by the Central Government,

may, notwithstanding anything in their terms of appointment or their conditions of service-

Sections 65 and 66 are not material for the case at hand. Section 67 is highly relevant and we rend the whole of if:

67(1), Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the administration of the Union territory of Manipur, or Union territory of Tripura, shall continue to hold the same post or office in the State of Manipur, or, as the case my be, in the State of Tripura and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in the State concerned.

(2) Where a person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Assam and, as from the appointed day, such duties become duties. In connection with the affairs of the State of Meghalaya or administration of the Union territory of Mizoram, then, be shall continue to hold the same post or office in that State or Union territory and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government or Administrator of, or other appropriate authority, in that State or Union territory as the case may be.

(3) Where a person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the autonomus State of Meghalaya and, as from the appointed day, such duties become duties in connection with the affairs of the State of Meghalaya, then, he shall continue to hold the same post or office in the State of Meghalaya and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government or other appropriate authority in, the State of Meghalaya.

(4) Nothing in Sub-section (1) or Sub-section (2) or Sub-section (3) shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to any person referred to in that subjection any order affecting his continuance in such post or office.

A reference to Section 64 shown that its two Sub-sections deal with the persons who were serving in connection with the affairs of the existing State of Assam, but were required to serve it connection with the affairs of the newly formed State of Meghalaya, or the Union Territory of Mizoram following an allocation order to be made by the Government named in this Sub-section. The proviso to Sub-section (2), the type of which is missing in Sub-section (1) states that every person borne on any cadre of the existing State of Assam and serving in the Mizo District immediately before the appointed day shall, continue to serve on and from the appointed day (unless otherwise directed by the Administrator) in connection with the administration of the territory until an allocation order is made in respect of such person of the expiry of a period of three years from the appointed day, whichever is earlier. As such, if an allocation order is made under Sub-section (2) in regard to a person, he would continue to serve in the Union Territory for all times, but if no such order is made, the person concerned has to serve for a period of three years from the appointed day. The provision of this type must have been made to take care of the continuity of the administration on the one hand, and to give option to the incumbents on the other hand to come back to their parent cadre, keeping in view the difficulty of the terrain.

Section 64 does not throw any light as to who would be deemed to be or would become the appointing authority of the persons who continue to serve the newly formed States. The provision has rather empowered the Governments named therein to come to an agreement, or to enable the Central Government to decide, as to who should be finally required to serve in connection with affairs of the State of Meghalaya or the Union Territory of Mizoram. To find out an answer to the problem with which we are seized we have to refer to Section 67. Though the marginal note of this Sub-section is "provisions to continuance of officers in same posts", a reading of the section shows apart from saying that every person who, immediately before the appointed day was holding discharging the duties of any post or office in connation with the territories in question, shall continue to hold the same post or office in the new territory, (if such duties of the new units), it further states that the person concerned shall be deemed on from the appointed day to have been duly appointed to the post or office by the Government or Administrator of, or other appropriate authority in, the State or Union Territory concerned. The need for such a provision is apparent, and the sane is to regularize what would have been otherwise an irregular state of affairs so far as public officers are concerned. On the appointed day they would continue to be the officers belonging to the parent State, but would discharge duties in connection with the affairs of the newly created States and the services of such officers fell to stand transferred to the newly created units. But as such officers would not ipso facto cease to belong to the former State a question may arise as to their competency to act as officers in an area which is no longer a part of State. It is to overcome this difficulty that the aid of a fiction is sought such officers are deemed, as from the appointed day, to have been duly appointed to their respective posts and offices by the Governments of the new States (See V.K. Balakrishnan v. State AIR 1957 Mad 169 which was referred with approval in Mysore S.R.T.C. v. Khaja Mohiuddin AIR 1969 Mys 41. As per the decision in N. Chandramouli v. State of Mysore AIR 1971 Mys 53, a provision like Section 67 merely substitutes tbe successor State as the appointing authority in the place of the parent State.

At this stage, we may point out that the provisions of the type finding place in Sections 62, 64 and 67 of the Act had first appeared in the States Reorganisation Act, 1956 whose Sections 115 and l16 are parallel to the aforesaid provisions and had been, interpreted in the decisions referred in the above paragraph. In the Bombay Reorganisation Act, 1960, Section 82 has dealt with the continuance of officers and is parallel to Section 67 of the Act. A similar provision can be found in Section 28 of the State of Nagaland Act, 1962 and in Section 65 of the Assam Reorganisation (Meghalaya) Act, 1969.

Before analysing the provisions of Section 67, it may be stated that deeming provision of the types mentioned in Sub-sections (1), (2) and (3) had become necessary as, in fact, the succeeding States were not really the appointing authorities. As is known, aid of a deeming provision is taken in a great deal of modern legislations, sometimes to include what is obvious at time to make clear what is uncertain, and on other occasions to impose for the purpose of a statute an artificial construction that would not otherwise prevail. In each case, however, it would be a question as to with what object the Legislature has made the deeming provision (see Consolidated Coffee Ltd. and Another Vs. Coffee Board, Bangalore, Whatever be the object, there can be no denia that a legal fiction is adopted in law for a definite purpose and the fiction must be allowed to operate in its legitimate field while limiting it to the purpose for which it has been created.(See K.S. Dharmadatan Vs. Central Government and Others, in para 10 of which some earlier decisions on this point have also been noted).

Now, it is apparent that if a person, who after the creation of a new State continues to discharge the duties of his post or office in the succeeding State, the control over such person must remain with the succeeding State, as otherwise the administration of the new State would suffer immensely. We may with profit refer Section 65(2) of the Assam Reorganisation (Meghalaya) Act, 1969, which bad created an autonomus State of Mehgalaya (which was given full State-hood by the Act) wherein it was specifically mentioned that the control of the person who was required to serve in connection with the affairs of Meghalaya shall vest in the Government of Meghalaya for so long as such person was required to serve in connection with the affairs of Meghalaya. It were the succeeding States or its officers who were made the competent authorities to pass any order "affecting continuance in post or office" of the concerned officers by the aforesaid Reorganisation Acts by making a specific provision in this regard in the concerned statutes. Section 116(2) of the State Reorganisation Act, 1956, proviso to Section 82 of the Bombay Reorganisation Act, 1960, Section 28(3) of the State of Nagaland Act, 1962 are such provisions. The Supreme Court had occasion to deal with this aspect in some of its decisions. In State of Punjab Vs. Jagdip Singh and Others, the power of the succeeding State to take action against the transferred employee was upheld on these facts: The Respondents were the officiating Tahsildars in the erstwhile State of Pepsu, By notification made by the Financial Commissioner, the Respondents were confirmed as Tabsildars, but no posts were available in which they could be so confirmed. The notification was issued on October, 23, 1955 and on the next day Raj Pramukh created super-numerary posts of Tahsildars. On November 1, 1956, the State of Pepsu merged with the State of Punjab and from that day the Respondents became 5 the servants of Punjab State. The earlier action was reconsidered by the Punjab Government on 31.10.57. The Punjab Government de-confirmed the Respondents. This was challenged on two ground: (1) the action amounted to reduction in rank and could not be taken without complying with the requirements of Section 311(2) of the Constitution, and (2) the Respondent who held the status of permantt Tahsildars in the State of Pepsu could not be deprived of it by the Successor Government of Punjab. Operation of Article 311 of the Constitution was rejected, reasons therefore being not our concern in the present case. Provision of Section 116(2) was held to be wide enough to empower the successor Government (i.e. the Punjab Government) to pass the order of the kind as it would be that Government who would be the competent authority under this Sub-section.

Similarly, in The State of Rajasthan Vs. Ram Saran, a reversion order had been passed in relation to an officer who was serving in the State of Ajmer but was deemed to have been allotted to serve in connection with the affairs of the Rajasthan State under the State Reorganisation Act. After the appointed day, the Deputy Inspector General of Police of Rajasthan ordered reversion of the incumbent to his substantive post which was challenged before the High Court who set aside the order of reversion on the ground that it was violative of Section 115 of the State Reorganisation Act. The High Court decision was set aside by the Supreme Court being of the view that the order did not violate Section 115 and 116(2) permitted or saved passing of the impugned order. The expression "competent authority" in Section 116(2) was the held to refer to the succeeding State or its officer in both these decisions. Of Course, whether under such a provision the succeeding State would be able to enforce punishment impose by the old State is a matter which was answered in S.K. Talwar v. State of Haryana AIR 1971 P&H. 448 by stating that effect to such an order could not be given by the new State without re-considering the matter and applying its mind.

From what has been stated above, we have no doubt in our mind that by virtue of Section 67(2), a person who was discharging his duties in connection with the affairs of the existing State of Assam which duty became the duty in connection with the affairs of the newly created State of Meghalaya or the. Union Territory of Mizoram shall not only continue in the same post or office in the newly created units but shall further become the employee of the newly created units and the Government, or the Administrator, or other appropriate authority of the succeeding States would be the competent authority to pass any order in relation to sub persons affecting his continuance in the post or office. In this view of the matter, we respectfully differ from the decision rendered up this regard in L. Sailo''s case. In our considered view the observation in that decision that Section 67 contains (as if, only) "the provision for continuance of the officers in the same post" relying apparently on what has been stated in the marginal note was not correctly decided by holding that the parent State would continue to be appointing authority of the concerned person. We may, however, state that what has been stated by us above is subject to the final order of allocation which may be passed u/s 64 of the Act. On such an allocation order being passed, it is apparent that the State to which a person is allocated would become the appointing authority. But till that is done, or where no allocation order is passed, the State or Union Territory (or its officers) whose duty the person concerned continues to discharge would become appointing authority of that person.

The above is our answer to the question referred to us. Let the records go back to the Division Bench for final disposal.