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PETITIONER: STATE OF MYSORE AND ANR.

       Vs.

RESPONDENT: H. SRINIVASAMURTHY

DATE OF JUDGMENT29/01/1976

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH FAZALALI, SYED MURTAZA

CITATION:  1976 AIR 1104            1976 SCR  (3) 256  1976 SCC  (1) 817

ACT:      Constitution  of   India-Articles  14  and  16-Penalty- Discrimination Civil  Service-Departing from  Administrative Policy.

HEADNOTE:      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

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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 v. 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  v.  State  of  Mysore,  [1967]  2 S.C.R. 70, distinguished.

JUDGMENT:      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.      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

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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

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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.

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    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. v. State of Mysore and Anr. (1. 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) [1967] 2 S.C.R. 70. 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  v.  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,

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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  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 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

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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. 262