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PETITIONER: K.   V. RAJALAKSHMIAH SETTY & ANR.

       Vs.

RESPONDENT: STATE OF MYSORE AND ANR.

DATE OF JUDGMENT: 07/11/1966

BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR  993            1967 SCR  (2)  70  CITATOR INFO :  D          1976 SC1104  (11,13,16)

ACT: Constitution  of  India, 1950, Art.  226-Writ  of  mandamus- Concessions  shown by State to some officers-When  could  be claimed by others.

HEADNOTE: In the State of Mysore, before it was reorganised under  the States  Reorganisation Act, 1956, surveyors who were  posted as  officers  in charge of sub-divisions  were  promoted  as Assistant Engineers.  The petitioners were placed in  charge of  sub-divisions  between December 1945 and  November  1949 and  the  then  Government, by  a  notification  dated  12th December   1949, ordered that their promotions were to  take effect  from ;that date irrespective of the dates  on  which they  were  put in charge of the sub-divisions.  But,  by  a notification  dated 17th May 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 promoted as  Assistant  Engineers they   also  were  shown  a  concession  by   giving   their appointments  retrospective effect from Ist November,  1956, when  the  now  State of Mysore  emerged  under  the  States Reorganisation Act.  The petitioners filed a writ petition in the High Court, in 1964, contending that there was nothing in the service rules which   prevented   the  Government   from   granting   such concessions to the petitioners also, and for the issue of  a writ 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 petition was dismissed.  On appeal to this Court, HELD:(a)  The concessions 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

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claim as of right.  The Court, therefore, could not issue  a writ  of  mandamus  commanding  the State  to  show  such  a concession  or other indulgence to the petitioners  because, there was no service rule which the State had  transgressed, nor  had the State evolved :any principle to be followed  in respect  of  persons  who  were  promoted  to  the  rank  of Assistant Engineers from surveyors. [75 H-76 B] (b)The petitioners, not having filed the petition within a reasonable  time after 17th May 1950 were guilty of  laches, and were not entitled to any relief. [76 B-C]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 2174  and 2175 of 1966. Appeals  by special leave from the judgment and order  dated ’September  30,  1965  of  the Mysore  High  Court  in  Writ Petitions Nos. 1745 and 1779 of 1964. 71 S.V.  Gupte, Solicitor-General and R. B. Dattar, for  the appellants. B.R.  L. Iyengar, S. S. Javali and S. P. Nayar,  for  the respondents. B. P. Singh and R. B. Datar, for the interveners. The Judgment of the Court was delivered by Mitter; J. These are two appeals from a common judgment  and order of the High Court of Mysore covering a number of  Writ Petitions  filed in that Court on special leave  granted  by this Court. The  appellants are two out of a total number of 43  persons who   filed  separate  petitions  under  Art.  226  of   the Constitution  before  the Mysore High Court  on  October  1, 1964.  The main prayer in all the petitions was that a  writ of mandamus should be issued commanding the State of  Mysore to  promote  each  petitioner  to  the  cadre  of  Assistant Engineers  from the date on which the petitioner was  placed in charge of a sub-division with all consequential benefits. To put in short, the demand of the petitioners was that they should all receive benefits which others promoted before and after  them had received.  According to the petitions,  some of these persons had received such benefits before the peti- tioners  and  some  had  been  accorded  similar  advantages although  they  were promoted as  Assistant  Engineers  long after the petitioners, but the State of Mysore had,  without any  reason,  declined  to  give  similar  benefits  to  the petitioners. The  facts as they emerge from the affidavits and the  docu- ments  referred  to therein are as follows.   The  State  of Mysore,  before the States Reorganisation Act 1956, used  to employ   engineering   graduates  for  a  long   time   past designating them as surveyors.  The State had another  cadre of  engineers known as Assistant Engineers.   Surveyors  who were posted as officers in charge of sub-divisions were from time  to time promoted to the cadre of Assistant  Engineers. Between March 24, 1944 and December 15, 1944, a batch of  27 surveyors  were placed in charge of different  sub-divisions in  the  State.   This batch was promoted to  the  cadre  of Assistant Engineers with effect from May 21, 1945.   Another batch of officers who were placed in charge of sub-divisions between  May  11,1945  and January 2,  1946  were  similarly promoted   with  effect  from  January  17,  1947.    By   a notification  dated  May 17, 1950 the Government  of  Mysore decided  to  give  all  these  41  persons  the  benefit  of promotion as Assistant Engineers with effect from the  dates

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of  occurrence  of vacancies according to  seniority.   They were further to have the benefit of the grant of initial pay with weight age from October 1, 1948 in the revised scale of pay.   The  petitioners comprising a batch of  63  surveyors were placed in charge 72 of sub-divisions on diverse dates between December 28,  1945 and  November 13, 1949.  With regard to most of  these,  the Chief Engineer of the State recommended to the Government of Mysore  that they should be promoted as Assistant  Engineers with retrospective effect from the dates they were placed in charge of subdivisions.  By a letter dated December 5,  1948 addressed  by the Secretary to the Government of  Mysore  to the Chief Engineer, the latter was requested to post most of this  batch  of  surveyors including  one  Siddaveerappa  in charge  of  sub-divisions  as  shown  in  the   accompanying statement pending issue of orders on the question of filling up vacancies existing in the Assistant Engineers’ cadre.  By notification  dated December 21, 1949 these 63 persons  were directed to be promoted as temporary Assistant Engineers  in the Public Works Department against existing vacancies.   On the  same date, the Chief Engineer was requested to  forward to Government an allocation statement showing the  vacancies against  which the newly promoted Assistant  Engineers  were counted, the dates from which the posts were vacant and  the dates on which they had been in charge of subdivisions.   On March  7, 1950 the Chief Engineer by his  communication  No. 1839-40 Est. supplied particulars to Government of the dates on  which each of these 63 persons had assumed charge  of  a sub-division.   On  September 28, 1953, the  Chief  Engineer addressed D.O. letters to all the 63 Assistant Engineers for particulars  of dates on which each of them had  taken  such charge.  This was complied with by all the addressees.  By a letter dated December 13, 1956, the Chief Engineer drew  the attention of the State Government to the fact that these  63 persons had been promoted in respect of vacancies which  had existed  long  prior  to  December 21,  1949  (the  date  of notification mentioned above) and that some of the vacancies had  existed  for  over  four  years  prior  to  that  date. According  to  the Chief Engineer, had  these  persons  been promoted as and when vacancies occurred, they would not only have  been  in  receipt  of  a  much  higher  pay  in  their progressive grade but also would have been senior to many of the  Assistant  Engineers  who had come in  from  the  newly merged  areas  of Hyderabad, Bombay and Madras.   The  Chief Engineer  also  commented that in addition  to  this  double disadvantage  to which these persons had been exposed,  they were  also  going to lose all chances of  promotion  to  the higher  ranks  because  the, Assistant  Engineers  from  the merged areas were all younger to them in age.  The attention of  the Government was drawn to the promotion of a  previous batch of 41 supervisors already mentioned.  The letter ended with a recommendation that a similar consideration should be extended  to these 63 persons and their ranks in the  common civil list be fixed with reference to the date of occurrence of  the vacancies.  It appears that the Chief Engineer  pur- sued  this subject from time to time making his  recommenda- tion about these persons.  By letter dated July 10, 1957 the Chief 73 Engineer pointed out that as the Inter-State seniority  list of  Assistant  Engineers was soon to be  finalised  and  the service  in  the cadre was to be the  criterion  for  fixing relative ranks, it was right that these 63 persons should be reckoned  as  promoted from the dates of occurrence  of  the

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vacancies  and  their  relative  ranks  in  the   integrated seniority list be fixed accordingly.  Another letter on  the subject was addressed by the Chief Engineer to the State Go- vernment  on December 28, 1957.  With regard to  the  recom- mendation already made by him, the Chief Engineer enclosed a modified  Inter-State seniority list from serial numbers  28 to 92 to show that only a few Deputy Engineers of Bombay who were  far  junior in age and service would be  ranked  below these  63  persons of the erstwhile Mysore  State  and  this would  not affect these men from Bombay inasmuch as  the  63 Mysore Engineers were very much older and would not bar  the prospects of promotion of the juniors. There was another batch of 107 persons who were promoted  to the  cadre  of  Assistant Engineers  by  notification  dated November   15,   1958.   Their   appointments   were   given retrospective  effect not from the dates on which  they  had assumed  charge but from November 1, 1956.   Although  these officers  did not receive the benefit of promotion from  the dates  on which the vacancies had occurred,  they  certainly received  some  benefit which had been denied  to  these  63 persons.   Similarly,  two batches of 32 surveyors  and  124 surveyors were promoted by notifications dated July 3,  1963 and October 9, 1963. During the argument, our attention was drawn by the  learned Solicitor-General  appearing for the appellants  to  another instance where some clerks had received benefit of promotion with retrospective effect. According to the appellants, they had been clearly discrimi- nated  against  considering the case of 41 persons  who  had been appointed before them as well as the subsequent batches of  surveyors  who  had  been  promoted  after  them.    The petitioners’  complaint was that the order of May  17,  1950 gave  special concession to these 41 officers to which  they were not entitled under the rules.  At the same time, it was argued  that  there was nothing in the service  rules  which prevented  the Government from granting such concessions  to the petitioners and the sum and substance of the argument of the  learned Solicitor-General was that if such  concessions could  be  given to persons who had  been  appointed  before these  63 persons as well as persons who had been  appointed subsequently,  there  was  no reason  why  such  concessions should have been withheld from his clients.  In  conclusion, it  was urged that it was just and proper that the State  of Mysore  should be directed to fix the scale of seniority  of these 63 persons on the basis that sup.CI/66-6 74 they had become Assistant Engineers from the dates on  which the vacancies to which they had been posted had occurred  so that  they  would  not lose their chances  of  promotion  in higher  posts,  for  if the seniority list  was  allowed  to remain as it is, persons who were younger in age and  junior in  service  to  this  batch of  63  persons  would  receive promotions ahead of them for no fault of theirs. According  to the counter affidavit of the State  of  Mysore used  before  the High Court, the idea  behind  giving  some concession to the batch of 41 persons was to give them  some financial benefit as from a particular date, viz., 1-10-1948 and  no more.  This does not appear to be strictly  accurate in view of the order dated May 17, 1950.  With regard to the batch of 63 persons, it was said that the necessary  details regarding  their  seniority  and  dates  of  occurrence   of vacancies  were  not available when the  notification  dated December  12, 1949 was published.  According to  Government, these people could not be given promotion with retrospective

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effect as the dates of assumption of charge in sub-divisions by them was not strictly in accordance, with the  seniority. Antedating  their promotions to the dates on which they  had taken  charge  would result in some  junior  officers  being ranked above some senior persons and it was for this  reason that  Government  had  ordered the  promotion  of  these  63 persons  to  take  effect  from  the  date  of  notification irrespective of the dates from which they were put in charge of  the sub-divisions.  It was also said that the  promotion of this batch was subject to the condition that they  should be  ranked in the order of seniority as per  gradation  list that obtained just before promotion.  This state of  affairs continued  right  up to the date of  Reorganisation  of  the States  in November 1956.  The affidavit goes, on  to  state that               "....in  view  of the Re-organisation  of  the               State...........and the statutory  recognition               of the position of several officers as on  31-               10-1956,  it  was no longer open  to  the  new               Mysore Government to re-open the issue settled               in 1949." With  regard  to the batch of 107 persons it was  said  that Government had ordered their promotion only from November 1, 1956  and  it was not competent to order the  same  from  an earlier date.  In regard to the two batches of 32  surveyors and  124 surveyors promoted in 1963, it was said  that  they were   all  in  charge  of  sub-divisions  from  the   dates subesquent  to November 1, 1956 and there was no  difficulty in  promoting them from the dates on which they had  assumed charge of sub-divisions.  According to the State as:               "...these   incidents   occurred   after   the               Reorganisation  and  the formation  of  a  new               State,  the new State of Mysore was  perfectly               justified in giving effect to their promotions               accordingly." 75 With  regard  to the 63 persons, the point of  view  of  the State  of Mysore is that the new State which  emerged  after the  Reorganisation of States in 1956 was not  competent  to interfere  with the state of affairs prior to 1-11-1956  and Government had no power to re-open their cases. According to Mr. Iyengar who appeared for the State,  assum- ing that law :included executive directions for the  purpose of Art. 14 of the Constitution, we have to see : (a) whether there  is  a rule which has been unevenly applied  as  among equals ; (b) if a principle has been evolved, whether it has been  unevenly applied ; and (c) whether there has  been  an equal treatment in applying executive orders. Mr.  Iyengar  argued that there was no rule which  had  been violated  in  this case nor any principle had  been  evolved which  could be said to have been unevenly applied  nor  was there any executive order which has been given effect to  in different  ways  in different cases.  Mr.  Iyengar’s  second submission  was that if the. 63 persons were to be fixed  in the cadre with respect to the dates on which they were first put  in  charge of sub-divisions, the  seniority  list  with regard  to  the whole cadre of engineers would  have  to  be altered thus affecting persons who are not before us and who would  be condemned unheard.  His third submission was  that giving  effect to the contention of the appellants would  be projecting  Art. 14 to a date before the  Constitution  came into  force and This could not be allowed.  He  also  argued that  the  appellants had been guilty of  laches  in  making their applications in 1964 when they were really complaining of  an order which had been passed as, far back as  May  17,

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1950.  It was contended that the appellants had been able to give no explanation as to why they did not apply in  between the date of the impugned order and the Ist of November  1956 when the Reorganisation of States became effective. Mr.  Iyengar further contended that in reality a  concession had    been    shown    to    some    persons    and     the petitioner/appellants,  had  no legal right  to  claim  such concession.   He  also  argued that  giving  effect  to  the contention of the petitioners would be going against s.  115 sub-s. (7) of the States Re-organisation Act,, 1956. There  is some force in some of the contentions put  forward on  behalf of the State of Mysore.  It is not  necessary  to test  them  as  we  find  ourselves  unable  to  uphold  the contention of the appellants.  No doubt some concession  had been shown to the first batch of 41 persons and the  batches of  persons  who had come in after the batch of  63  persons also  received  some concession, but after  all  these  were concessions  and not something which they could claim as  of right.  The State of Mysore might have shown 76 some  indulgence to this batch of 63 persons but  we  cannot issue a writ of mandamus commanding it to do so.  There  was no service rule which the State had transgressed nor has the State  evolved  any principle to be followed in  respect  of persons who were promoted to the rank of Assistant Engineers from  surveyors.   The indulgences shown  to  the  different batches  of persons were really ad hoc and we are not  in  a position  to say what, if any, ad hoc indulgence  should  be meted out to the appellants before us. There  is also a good deal of force behind  the  ’contention that the appellants are guilty of laches.  After the passing of  the order ,of May 17, 1950, they should have made  a  in application  within  a reasonable time  thereafter.   Merely because the Chief Engineer had espoused their cause and  was writing letters from time to time to the State Government to do  something  for them did not mean ;that they  could  rest upon  their  oars if they were  really  being  discriminated against.   As  we  cannot  hold  that  the  appellants  were entitled  to  any particular indulgence or  concession,  the only  way ,of meting out equality to all surveyors  who  had been  promoted to the cadre of Assistant Engineers would  be to  say  that promotions ,should in all cases  be  effective from the date of the notification.  This is obviously beyond our powers. In the result, the appeal fails and is dismissed, but on the facts  ,of this case, we make no order as to costs  of  this appeal.   This order will also govern the case of S.A.  Muni Reddy  who alone out of 37 persons was allowed to  intervene in this appeal by our order made on 11th October, 1966. V.P.S. Appeal dismissed. 77