STATE OF MYSORE AND ANR.

H. SRINIVASAMURTHY

January 29, 1976

[R. S. S, ARKARIA AND S. MuRT•zA FAz-'-I~ Au, JJ.]

Constuuuon of India-Articles 14 and I6-Pe11alty-Di.1crin1ination-Civil Service-Departing fronz Adnlinistratire Po/icy.

The respondent entered service of the State of 1lysore in 1935 as Instructor of Tailoring in the Department of Public Instruction. In 1949 he went on deputation in the Polytechnic In_stitute at Devangere.

One K. N. Chetty \Vh? was far junior to respondent was also sc:tt on deputation to another similar institution in 1949.

K. N. Chetty \Vas absorbed from the date he went on deputa- C tion 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 departn1ent. In 1956, respondent, was again posted on deputation. The interven~ ing pcri1)d beiwecn his reversion and re-posting Vi'as treated as leave.

On reorganisation of State respondent's services \.Vere allotted to the new State of I\<1yserc.

The respondent made several representations and stated that he was discrimir.:::iled against and treated differently from K. N. Chetty v; ho was junior to him in the parent dep:::irtment.

The Public Service Comn1ission found that respondent's case v.'as on all fours with tha1 of Chetty nn<l that he deserved simi- D lar trat1nent. The Commission follnd that the temporary reversion of the respondent io his parent department was not justified.

The Government in 1964 ordered the absorption of the respondent in the Department of Technical Education fron1 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 heen effected in 19:57 and 1961 and that he would not be given any more financial benefit or revision of pny or nddition inCremnt for his previou~ service.

The respondent filed a Writ Petition challenging these conditions and praying E for a dirction that he should be absorbed in the Department of Technical Education fron1 the date of his initial appointment in 1949, and granted consequential benefits of the revision of p<1y scales etc. The appellant opposed the \Vrit Ptition on the grounds that the respondent had no legal right to be absorbed in the Department of Technica~ Education \Vith effect frorn a particular anterior date or to be given the revised pay scales applicable to those borne permanently in the service of that department.

Chctty's case Was sought to be distin_guished on the _ground that he \Vas absorbed in the year 1951 as against F the respondent's absorption in 1964 and that there \1,:as a break in the service of the repondent.

The 1-:ligh Court allowed the Writ Petition and issued a direction that absorp tion of the respondent in the Department of Technical Education be given effect from 1949 when he initially assumed duty on deputation. The High Court aho declared that he would be entitled to <ill 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. Raja!akshn>iah Setty v. State of Mysore [1967] G

2 S.C.R. 70.

Diss111issing the appeal,

HELD : In he present case it appears that the State had evolved a principle pursuant to \vh1ch all the employees who came on deputation from nther de~ partmci:its to the Polytechnic, exceptii:g the respondent, were absorbed permanently rn the Department of Technical Education with effect from 1he

ats on which they came on deputation. Even Chctty who was ndmittedlv 1un1or to the :esponden~ <ind was identically situated ~--as accorded the sam~

teatment. It 1s 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 DJ

A .

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 nmount to reduction in rank. [260 F-HJ The High Court was therefore, justified in granting the relief, it did to the respondent. 1261 Bl "Rajalaksfvniah Setty \·. State of lvfysore, [1967] 2 S.C.R. 70, ditinguished. ...

B CIVIL APPELLATE JURISDICTION : 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. c Mrs. Shyamla Papp11 and Vineet Kumar for the Respondent.

The Judgment of the Court was delivered by

SARKARIA, J .-The circumstances leading to this appeal, directed . 1 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, Devangcre 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 to 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-orgamza!ion of States with effect from November l, 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 deputat10n.

...

MYSORE v. H. SRIN!VASAMURTHY (Sarkaria, !.) 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 Febrnary 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 dcpartinents ordered the transfor 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 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 Srinivas.amurthy is on all fours with that of Sri Narayanaswamy Chetty and he is deserving of similar treatment.

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 In- E structor 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 Tech- F nical Education in the grade of Rs. 150-250 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 G 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 H _1949 a_nd he be given the benefit of the revisions of pay scale, includ- . rng: weightagc benefit.

The Government did not accept the representation.

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 cf pay scales effected in 1957 and 1961 and wcightage benefits thereunder.

The order dated February 19, 1964, was impugned on the ground that he had been in, ""m1sly 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 whc were similarly situated, were absorbed in the Department of Tee 'rnical Edncation with effect from the, initial date of joining duty on deputation. It was contended, that in making the impugned order, co1trary to the recommendations of the State Public Service Commission, the State Government had acted arbitrarily and in violation of Artie. es 14 and 16 of the Constitution.

The petition was opposed by the appellant, who in its co, rnteraffidavit. contended that the respondent had no legal right to tc 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 Depar :ment.

It was further contended that the case of the respondent did not stand on the same footing as that of Narayanaswamy Chctty becaus': the order of Chetty's absorption was passed in 1951 and that of te respondent's absorption in 1964, and there was a break in the serl'icc of the respondent in the Department of Technical Education, in 19:i5-56.

It was stated that the absorption of the employees which came on deputation from a particulaor 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 issned.

The High Court allowed the writ petition and issued a direction that the absorption of the respondent in the Department of Te<hnical Education, be given effect from November 28, 1949 when he initially resumed duty on deputation to the Polytechnic at Dcvangerc.

The High Court further declared that he will be entitled to all consequential benefits from such abosrption including the be)lefit 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 ,; ase is fully covered by this Court's decision in K. V. Rajalakshmiah Setty

and anr. v. State of Mysore and anr. ('). The point canvassed by the Counsel is, that the absorption of K. N. Chctty and five other;, 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. Chctty were not similarly situated because there was a break in the respondent's service with the Department of Technical Education.


....

MYSORE v. H. SRINIVASAMURTHY (Sarkana, J.) 259

As against this, Mrs. Shyamla Pappu submits that in Rajalaksh- A miah 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 B accorded the same treatment. It is urged that this principle of policy 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 1955 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 C 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 v. State of Mysore (supra) is clearly distin- D guishable 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 4 I Sur- E vcyors, who had been placed in charge of different sub-divMons 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 !st November 1956, when the new State of Mysore emerged under the States Reorganization Act. The petitioners F 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 the petition.

On appeal, this Court held that the concession shown to the batch of 41 persons who had G been appointed before the petitioners and to the batch of 107 persons who had been appointed thereafter, were mere ad hoc concessions and not SOil)ething 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

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 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 s. 115(7) 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 rul_e on the basis of which they could claim such promotions as of right.

Lastly, the petitioners in that case were found guilty of serious ]aches.

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 ad, versely affect even Narayanaswamy Chetty, who was admittedly junior to him in the parent Department.

On the other hand, it is an undisputed fact that six 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. Chctty. 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. Narayanaswamy 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 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 th.at the responderrt's work in the Department of Technical Education

. .,

j '

MYSORE v. H. SRINIVASAMURTHY (Sarkaria, J.) 261

was found unsatisfactory or that he was not otherwise suitable or quali- A fied 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 B the relief, it did, to the respondent.

The appeal fails and is dismissed with costs.

P.H.P.

Appeal dismissed.