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PETITIONER: STATE     OF MYSORE AND ANR.

       Vs.

RESPONDENT: SYED MAHMOOD AND ORS.

DATE OF JUDGMENT: 04/03/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SHAH, J.C. MITTER, G.K.

CITATION:  1968 AIR 1113            1968 SCR  (3) 363  CITATOR INFO :  F          1974 SC 460  (5,6)  F          1975 SC1498  (5)  F          1987 SC1889  (5)  RF         1988 SC1069  (5)

ACT: Mysore State Civil Services General Recruitment Rules, 1957, r.  4(3)  (b)-Promotion to next grade-Persons  eligible  not considered  and  juniors in  seniority  promoted-High  Court directs their promotion-Validity.,

HEADNOTE: Rule  4(3)(b)  of the Mysore State  Civil  services  General Recruitment  Rules,  1957 requires promotion to be  made  by selection  on  the  basis of  seniority-cum-merit,  that  is seniority  subject  to  the  fitness  of  the  candidate  to discharge the duties of the Post from among persons eligible for  promotion.  While making selections for  promotions  to the posts of senior statistical assistants from the cadre of junior statistical assistants, the State Government did  not consider  the  case  of  the  respondents  who  were  junior statistical  assistants,  and  published  a  list  promoting persons  ranking  below  them in point  of  seniority.   The respondents  filed writ petitions, in which the  High  Court refused  to  quash  the  seniority  list  but  directed  the appellant State to Promote the respondents as from the dates on  which  their  juniors  were  promoted  and  treat  their promotion as effective from that date.  Allowing the appeal, this Court, HELD : While making selections for promotion to the posts of senior  statistical  assistants  from the  cadre  of  junior statistical  assistants  in 1959, the State  Government  was under  a  duty to consider whether having  regard  to  their seniority   and  fitness  they  should  be  promoted.    The promotions  were irregularly made and they were,  therefore, entitled  to  ask the State Government to  reconsider  their case.   In the circumstances, the High Court could  issue  a writ  to the State Government compelling it to  perform  its duty  and  to  consider  whether  having  regard  to   their seniority and fitness they should have been promoted on  the relevant  dates when officers junior to them were  promoted.

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Instead  of  issuing  such a writ, the  High  Court  wrongly issued writs directing the State Government to promote  them with retrospective effect.  The High Court ought not to have issued  such  writs without giving the State  Government  an opportunity in the first instance to consider their  fitness for promotion in 1959. [365 B-D] Promotion  to the post of senior statistical  assistant  was based on seniority-cum-merit.  In spite of their  seniority, officers junior to them could be promoted if they were unfit to discharge the duties of the post.  Promotion could not be claimed  as a matter of right by virtue of seniority  alone. [366 C-D] State  of  Mysore v. H. M. Ballary, [1964]  7  S.C-.R.  471, distinguished.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 31 and  32 of 1968. Appeals  by special leave from the judgment and order  dated January 25, 1967 of the Mysore High Court in Writ  Petitions Nos. 774 and 2171 of 1965. R.   H.  Dhebar,  Shyamala Pappu and S. P.  Nayar,  for  the appellants (in both the appeals). S.   S. Javali and M. Veerappa for respondent No.  (in  both the appeals). 364 The Judgment of the Court was delivered by Bachawat, J. On the reorganisation of States on November  1, 1956,  the  services  of  Syed Mahmood  and  Bhao  Rao  were allotted to the State of Mysore and they were employed there as  junior statistical assistants.  On January 16, 1958  the Head of the Department of Statistics under the directions of the  Government  of  State of Mysore  prepared  a  tentative seniority  list  of  nongazetted staff  of  that  department treating   junior   statistical   assistants   and    senior statistical  inspectors  of the former State  of  Hyderabad, junior  statistical assistants and senior compilers  of  the former   State   of  Mysore,  statistical   assistants   and statistical inspectors from Bombay and the head compiler  of Coorg as holding the equivalent posts of junior  statistical assistants in the State of Mysore.  In 1959, before revising this tentative seniority list the State Government  directed that   all  the  statistical  assistants   and   statistical inspectors  of Bombay State and the head compiler of  Coorg, should be treated and promoted as senior statistical  assis- tants.  As a result of this direction officers ranking below Syed Mahmood and Bhao Rao in the seniority list published on January  16,  1958 were promoted to the  higher  posts.   In makintheir promotions, the State Government did not consider the  fitness of Syed Mahmood and Bhao Rao for  promotion  at all.   At  a much later date, they were promoted  as  senior statistical   assistants.   On  May  3,  1963,   the   State Government  published  a  revised  seniority  list   placing inspectors from Bombay and head compilers from Coorg in  the catecory of senior statistical assistants.  Syed Mahmood and Bhao Rao filed separate writ petitions in the High Court  of Mysore  asking for appropriate writs quashing the  seniority list  published  on  May 3, 1963, and  directing  the  State Government  to consider their case for promotion  as  senior statistical   assistants  with  retrospective  effect.    As the  .objections to the seniority list published on  May  3, 1963 were still under consideration by the State  Government the  High Court refused to quash this seniority list but  it

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directed  the State Government to promote Syed  Mahmood  and Bhao  Rao as from the respective dates on which  respondents junior   to  them  were  promoted  as   senior   statistical assistants  and to treat such promotions as effective up  to May  3,  1963.  The State of Mysore has  filed  the  present appeals  from  the orders directing the  promotion  of  Syed Mahmood and Bhao Rao after obtaining special leave. Promotion  to the posts of senior statistical assistants  is made  from  the cadre of junior statistical  assistants  and progress assistants.  Rule 4(3)(b) of the Mysore State Civil Services  General  Recruitment  Rules,  1957  requires  such promotions  to  be  made  by  selection  on  the  basis   of seniority-cum-merit,  that  is  seniority  subject  to   the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion.  In 1959 365 the seniority of junior statistical assistants was  governed by  the seniority list published on January 16, 1958.   Syed Mahmood  and  Bhao Rao were junior  statistical  assistants. While making selections for promotion to the posts of senior statistical assistants from the cadre of junior  statistical assistants in 1959, the State Government was under a duty to consider  whether  having  regard  to  their  seniority  and fitness  they should be promoted.  But  without  considering their  case  at all, the State  Government  promoted  junior statistical assistants ranking below them in point of senio- rity.   The promotions were irregularly made and they  were, therefore-,   entitled  to  ask  the  State  Government   to reconsider their case.  In the circumstances, the High Court could issue a writ to the State Government compelling it  to perform  its duty and to consider whether having  regard  to their  seniority and fitness they should have been  promoted on  the  relevant dates when officers junior  to  them  were promoted.   Instead of issuing such a writ, the  High  Court wrongly  issued  writs  directing the  State  Government  to promote  them  with retrospective effect.   The  High  Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to  consider their fitness for promotion in 1959. Mr.  Javali  submitted  that Syed Mahmood and  Bhao  Rao  by virtue of their seniority were entitled to promotion at  the time  when  persons  junior  to  them  were  promoted.   The argument  overlooks the fact that promotion to the  post  of senior  statistical  assistant was based  on  seniority-cum- merit.  In spite of their seniority officers junior to  them could be promoted if they were unfit to discharge the duties of the post.  Promotion could not be claimed as a matter  of right by virtue of seniority alone. Mr.  Javali argued that even in the case of promotion  based ,on seniority-cum-merit, an officer is entitled to promotion by virtue of seniority alone, and he relied on the  decision in  State of Mysore v. H. M. Bellary(1).  In that  cast,  an officer of the Bombay Government was sent on deputation from his parent department to another department.  After long and satisfactory  service and a number of promotions in the  new department, he was reverted to his parent department and was posted  in a lower grade though in the meantime  an  officer next below him in the parent department had been promoted to a higher grade.  The promotion to the higher grade was based on seniority-cum-merit.  The Court held that under r.  50(b) of  the Bombay Civil Services Rules and the circular of  the Government  of Bombay dated October 31, 1950, an officer  on deputation in another department on reversion to his  parent department  was entitled to be restored to the  position  he would have occupied in his parent department had he not been

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deputed.  Rule 50(b) treated the service of an (1)  [1964] 7 S.C.R. 471. 366 officer on deputation in the new department as equivalent to service   in   the  parent  department.   As   he   rendered satisfactory  service and was considered fit  for  obtaining increments  and promotions in the new department, he  should be  deemed to be fit for promotion in the parent  department and  was  entitled to promotion in that department  when  an officer next below him there was getting promotion based  on seniority-cum-merit.   In  official language,  this  is  the "next  below rule" under which an officer on  deputation  is given  a paper promotion and shown as holding a higher  post in the parent department if the officer next below him there is  being promoted.  In our opinion, this case  is  entirely distinguishable.  It decided that under the relevant service rules the fitness for promotion of an officer on  deputation in  the  new  department  was  equivalent  to  fitness   for promotion  in  the  parent department and  the  officer  was entitled  to  promotion in the parent  department  when  the officer  next below him there was obtaining promotion  based on seniority-cum-merit.  But it is not an authority for  the proposition  that the officer on deputation is  entitled  to promotion  in either the new or the parent department  as  a matter of right by virtue of his seniority alone, or that he should  be deemed to be promoted whenever the  officer  next below  him is being promoted.  Where the promotion is  based on seniority cum-merit the officer cannot claim promotion as a  matter of right by virtue of his seniority alone.  If  he is  found unfit to discharge the duties of the higher  post, he  may be passed over and an officer junior to him  may  be promoted. We  are of the opinion that the State Government  should  be directed  at  this  stage to consider the  fitness  of  Syed Mahmood  and  Bhao Rao for promotion in 1959.   If  on  such examination  the  State Government  arbitrarily  refuses  to promote  them,  different considerations would  arise.   The State  Government would upon such consideration be  under  a duty  to promote them as from 1959 if they were then fit  to discharge  the duties of the higher post and if it fails  to perform its duty, the Court may direct it to promote them as from 1959. In the result, we allow the appeals and set aside the orders passed by the High Court.  We direct the State Government to consider whether Syed Mahmood and Bhao Rao should have  been promoted  to the posts of senior statistical  assistants  on the  relevant  dates  when  officers  junior  to  them  were promoted,  and if so, what consequential  monetary  benefits should  be allowed to them.  While granting  special  leave, this Court directed that the appellants shall pay the  costs of   the  respondents  in  any  event.    Accordingly,   the appellants are directed to pay the costs of these appeals to the respondents.  One hearing fee. Y.P.                       Appeals allowed. 367