Civil Appeal No 722 of 1968
Appeal by Special Leave from the Judgment and order dated the 17th July 1967 of the Mysore High Court in Writ Petition No 989 of 1965
Narayan Nettar and K R Nagaraja for the Appellant
Mrs Shyamla Pappu and Vineet Kumar for the Respondent
The Judgment of the Court was delivered by SARKARIA J
The circumstances leading to this appeal directed against a judgment of the High Court of Mysore are as follows The respondent herein entered the service of the Princely State of Mysore in 1935 as Instructor of Tailoring in the Department of Public Instructions
In 1949 three occupational Institutes Polytechnics at Hassan Devangere and Chintamani were started in the State
The respondent was sent on deputation to serve in the Polytechnic at Devangere as Instructor in Tailoring and he joined the new post on November 28 1949
One Shri K Narayanaswamy Chetty who was also an Instructor in Tailoring in the Department of Public instruction was also deputed to the occupational Institute at Hassan and joined duty there on December 1 1949
This K N Chetty was 
far junior to the respondent in service
Special officer in Charge of the three occupational Institutes considered the names of the respondent and K N Chetty for absorption as Instructors in Tailoring and recommended for their absorption with effect from the respective dates of their joining duty after deputation in the Institutes
Accordingly K N Chetty was absorbed with effect from December 1 1949 but no order was passed in the case of the respondent despite repeated representations made by the latter
In 1953 the then State of Mysore set up the Department of Technical Education and the Polytechnic at Devangere became part of that Department
The respondent continued tp serve on deputation in that Department
In 1955 for no fault of the respondent the Government passed orders reverting him to his parent Department
On June 11 1956 the respondent was again posted on deputation as Instructor in Tailoring in the Polytechnic at Bellary on provisional basis
The intervening period between his reversion and reposting to the Polytechnic was treated as leave
On the re organization of States with effect from November 1 1956 his services were allotted to the new State of Mysore
The respondent continued to make representations to the effect that like other employees who were taken on deputation from other Departments he should also be absorbed in the Department of Technical Education with effect from November 28 1949 which was the date on which he initially came on deputation
257 His specific grievance was that in any case he could not be discriminated against and treated differently from K N Chetty who was junior to him in the parent Department and came on deputation to the Polytechnic establishment subsequently
The State Government referred the respondent s case to the Public Service Commission who examined it and by a communication dated February 2 1960 made these recommendations in favour of the respondent It is stated in the Government letter dated 26 10 1959 that the Director who was the Unit officer for both the departments ordered the transfer of Sri Srinivasa Murthy who was fully qualified as Tailoring Instructor in the Technical Education Department and there was no need to classify the vacancy post to which he was transferred under the then existing rules
Along with him Sri K Narayanaswamy C Chetty who was his junior and possessing similar qualifications was transferred as Tailoring Instructor in the Technical Education Department and was absorbed in the same department by Government in consultation with the Public Service Commission
The case of Sri Srinivasamurthy is on all fours with that of Sri Narayanaswamy Chetty and he is deserving of similar treatment
D  In view of the above and since Sri Srinivasa Murthy who was fully qualified was transferred in 1949 by the Director and appointed as Tailoring Instructor under the rules then in force and as his reversion at this distance of time for no fault of his would cause a great hardship to him the Commission are of the opinion that he may be absorbed as Tailoring Instructor from the date of his appointment as such as has been ordered in the case of Sri K Narayanaswamy Chetty In the opinion of the Commission the temporary reversion of the respondent to his parent department in 1955 56 was not justified
Ultimately the Government by order dated February 19 1964 ordered the absorption of the respondent in the Department of Technical Education in the grade of Rs 150 with effect from the date of the order in the vacancy in which he was working subject to these conditions
a that he would not be entitled to the benefit of revision of scales of pay that had been effected in 1957  1961 by way of increments or weightage benefit accruing 
thereunder b that he would not be given any more financial benefit or revision of pay or additional increments for his previous service
Against this order the respondent made representations to the Government praying that his absorption should be related back to 1949 and he be given the benefit of the revisions of pay scale including weightage benefit
The Government did not accept the representation
258 On April 21 1965 the respondent filed a writ petition under Article 226 of the Constitution in the High Court for the issue of a writ of mandamus directing his absorption in the Department of Technical Education from the date of his initial appointment therein namely November 28 1949 and to give him benefits of the revisions of pay scales effected in 1957 and 1961 and weightage benefits thereunder
The order dated February 19 1964 was impugned on the ground that he had been invidiously discriminated against in the matter of absorption and appointment while his junior K Narayanaswamy Chetty whose case was identical in all respects and six other officers who were similarly situated were absorbed in the Department of Technical Education with effect from the initial date of joining duty on deputation
It was contended that in making the impugned order contrary to the recommendations of the State Public Service Commission the State Government had acted arbitrarily and in violation of Articles 14 and 16 of the Constitution
The petition was opposed by the appellant who in its counter affidavit
contended that the respondent had no legal right to be absorbed in the service of the Department of Technical Education from a particular anterior date or to be given the revised pay scales applicable to those borne permanently in the service of that Department
It was further contended that the case of the respondent did not stand on the same footing as that of Narayanaswamy Chetty because the order of Chetty s absorption was passed in 1951 and that of the respondent s absorption in 1964 and there was a break in the service of the respondent in the Department of Technical Education in 1955 56
It was stated that the absorption of the employees which came on  deputation from a particular date was a concession which could not be claimed as of right and consequently a writ of mandamus as prayed for by the respondent should not be issued
The High Court allowed the writ petition and issued a direction that the absorption of the respondent in the Department of Technical Education be given effect from November 28 1949 when he initially resumed duty on deputation to the Polytechnic at Devangere
The High Court further declared that he will be entitled to all consequential benefits from such absorption including the benefit of revision of pay scales in the years 1957 and 1961 and also weightage benefits
Hence this appeal by the State
Mr Nettar appearing for the appellant contends that this case is fully covered by this Court s decision in K V Rajalakshmiah Setty and Anr
vs State of Mysore and Anr
The point canvassed by the Counsel is that the absorption of K N Chetty and five others with effect from particular anterior dates was not made in pursuance of any principle of policy or statutory rule but was done as a matter of concession
It is urged that Articles 14 and 16 of the Constitution cannot be invoked to enforce a mere concession
Counsel has further made an attempt to show that the respondent and K N Chetty were not similarly situated because there was a break in the respondent s service with the Department of Technical Education
1  259 As against this Mrs Shyamla Pappu submits that in Rajalakshmiah Setty s case supra the facts were entirely different
It is emphasised that in the present case seven employees had come on deputation from other Departments to the Polytechnics and all of them excepting the respondent were absorbed permanently in the Department of Technical Education with effect from the dates on which they came on deputation
Even Narayanaswamy Chetty who was admittedly junior to the respondent and was identically situated was accorded the same treatment
It is urged that this principle of policy r was ignored in the case of the respondent and he was without reason singled out for unfair discriminatory treatment
It is pointed out that his so called reversion to the parent Department in 1958 for a short period was a misnomer
It was not a reduction in rank nor a break in the continuity of his service
Moreover it was as the Public Service Commission found undeserved and could not by any stretch of reasoning be considered a ground for meting out discriminatory treatment to the respondent
We find a good deal of force in the arguments of the learned Counsel for the respondent
Rajalakshmiah Setty vs State of Mysore supra is clearly distinguishable from the facts of the present case
In that case the Government of the then State of Mysore by a notification dated December 12 1949 directed that the promotions of 63 petitioners therein from the post of Surveyors as Assistant Engineers were to take effect from that date irrespective of the dates on which they were put in charge of sub divisions
But by a notification dated May 17 1950 the Government showed a concession to a different batch of 41 Surveyors who had been placed in charge of different sub divisions between March 1944 and January 1946 by promoting them as Assistant Engineers with effect from the dates of occurrence of vacancies according to seniority
In November 1958 another batch of 107 persons were similarly promoted as Assistant Engineers with retrospective effect from 1st November 1956 when the new State of Mysore emerged under the States Reorganization Act
The petitioners therein filed a writ petition praying for the issue of mandamus directing the State to fix their seniority also on the basis that they had become Assistant Engineers from the dates on which the vacancies to which they had been posted had occurred  The High Court dismissed petition
On appeal this Court  held that the concession shown to the batch of 41 persons who had been appointed before the petitioners and to the batch of 107 persons who had been appointed thereafter were mere ad hoc concessions and not something which they could
claim as of right
It was observed that there was no service rule which the State Government had transgressed nor the State had evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors
It may be noted that the grant of the relief prayed for by the 63 petitioners would have unsettled and caused wholesale alterations of 260 the seniority list with regard to the entire cadre of Engineers thus affecting persons who were not before the Court and who would have been r condemned unheard
Further acceptance of the petitioners  contentions would have unsettled pre Constitution matters and it would have been directly productive of results going against section 1157 of the States Re organization Act
Furthermore the petitioners in that case 
claimed to be promoted with  effect from past dates
There was no  principle of policy or service rule on the basis of which they could  claim such promotions as of right  Lastly the petitioners in that case were found guilty of serious laches
Such impediments in the way of the relief claimed by the respondent do not exist in the present case
It appears to us that the acceptance of the respondent s contentions in the present case cannot lead to any untoward results such as were apprehended in Rajalakshmiah s case supra
Indeed it has not been shown that the absorption of the respondent with effect from November 1949 would adversely affect even Narayanaswamy Chetty who was admittedly junior to him in the parent Department
On the other hand it is an undisputed fact that sit other employees who were similarly situated were absorbed from the dates on which they initially joined duty after deputation to the Polytechnics
It is not the case of the appellant that this principle whereby the absorption in the Department of Technical Education was related back to the date on which a person initially came on deputation was ever departed from excepting in the case of the respondent
This being the case the High Court was right in holding that the State Government had evolved a principle that if a person was deputed to the Department of Technical Education from another department and he stayed on in that other department for a reasonable long time his absorption in that department should be made to relate back to the date on which he was initially sent
There was no justification whatever to depart from this principle of policy in the case of the respondent who was in all material respects in the same situation as K N Chetty
very rightly the High Court has held that his impermissible reversion for a short while in 1955 to the parent department was no ground to hold that he was not similarly situated as K Nariayanaswamy Chetty
This so called reversion to the parent Department for a short period in 1955 56 could not by any reckoning be treated as a break in his service this period having been treated as leave
Nor did it amount u  to reduction in rank
In any case this reversion  was not ordered owing to any fault of the respondent
It is not the appellant s case  that the respondent s work in the Department of Technical Education 261 was found unsatisfactory or that he was not otherwise suitable or qualified to hold the post of Tailoring Instructor in that Department
That he was suitable to be absorbed in that post is manifest from the recommendation of the Public Service Commission and is implicit in the impugned order itself
For the reasons aforesaid we are of opinion that in the special circumstances of this case the High Court was fully justified in granting the relief it did to the respondent
The appeal fails and is dismissed with costs
PHP Appeal dismissed


Summary:
The respondent entered service of the State of Mysore in 1935 as instructor of Tailoring in the Department of Public Instruction
In 1949 he went on deputation in the Polytechnic Institute at Devangere
One K N Chetty who was far junior to respondent was also sent on deputation to another similar institution in 1949
K N Chetty was absorbed from the date he went or deputation in the new post but respondent was not so absorbed
In 1955 for no fault of the respondent Government passed orders reverting him to his parent department
In 1956 respondent was again posted on deputation
The intervening period between his reversion and re posting was treated as leave
On reorganisation of State respondent s services were allotted to the new State of Mysore
The respondent made several representations and stated that he was discriminated against and treated differently from K N Chetty who was junior to him in the parent department
The Public Service Commission found that respondent s case was on all fours with that of Chetty and that he deserved similar treatment
The Commission found that the temporary reversion of the respondent lo his parent department was not justified
The Government in 1964 ordered the absorption of the respondent in the Department of Technical Education from the date of the order subject to the conditions that he would not be entitled to the benefit of revision of scales of pay that had been effected in 1957 and 1961 and that he would not be given any more financial benefit or revision of pay or addition increment for his previous service
The respondent filed a Writ Petition challenging these condition and praying for a direction that he should be absorbed in the Department of Technical Education from the date of his initial appointment in 1949 and granted consequential benefits or the revision of pay scales etc
The appellant opposed the Writ Petition on the grounds that the respondent had no legal right to be absorbed in the Department of Technical Education with effect from
a particular interior date or to be given the revised pay scales applicable to those borne permanently in the service of that department
Chetty s case was sought to be distinguished on the ground that he was absorbed in the year 1951 as against the respondent s absorption in 1964 and that there was a break in the service of the respondent
The High Court allowed the Writ Petition and issued a direction that absorption of the respondent in the Department of Technical Education be given effect from 1949 when he initially assumed duty on deputation
The High Court also declared that he would be entitled to all consequential benefits
The appellant in an appeal by Special Leave relied on the judgment of this Hon ble Court in the case of K V Rajalakshmiah Setty vs State of Mysore 1967 2 SCI 70
Dismissing the appeal  HELD In the present case it appears that the State had evolved a principle pursuant to which all the employees who came on deputation from the departments to the Polytechnic excepting the respondent were absorbed permanently in the Department of Technical Education with effect from the dates on which they came on deputation
Even Chetty who was admittedly junior to the respondent and was identically situated was accorded the same treatment
It is an undisputed fact that 6 other employees who were similarly situated were absorbed from the date on which they initially joined duty after deputation to the Polytechnic
259 A C 260 D 256 There was no justification whatever to depart from this principle of policy in the case of the respondent
His reversion was not ordered owing to any fault on his part
The said reversion could not be treated as a break in service since it was treated as leave nor did it amount to reduction in rank
60 F H The High Court was therefore justified in granting the relief it did to the respondent
261 Bl Rajalakshmiah Setty vs State of Mysore   distinguished