Judgment

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.

2. 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 Reorganization Act 37 of 1956 the new State of Bombay, which included the territories of the States of Saurashtra and Kutch, was formed. S. 115 of the States Reorganisation Act 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.

3. Under the States Reorganisation Act, 1956, the appellants were allotted service 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 and Allowances) Rules, 1957". Those rules governed the servants who were allotted to the State of Bombay on reorganisation. A large majority of the members of the ministerial branch of the Secretariats 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.

4. 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 substantially the same as the provisions of Sections 115, 116 and 117 of the States Reorganisation Act, 1956. The appellants were allotted service in connection with the affairs of the State of Gujarat under S. 81 of the Bombay Reorganisation Act.

5. The newly constituted State of Gujarat finding a dearth of experienced officers in the Secretariat transferred the appellants at divers 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 Ser