Judgment Case ID: 3415

Judgment:
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 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 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. P.H.P. 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 S.C.I. 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.