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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: C. R. SESHADRI & ORS.

DATE OF JUDGMENT10/01/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  460            1974 SCR  (3)  87  1974 SCC  (4) 308

ACT: Civil  Service--Promotion--Duty of Executive and  Courts  in relation thereto.

HEADNOTE: The  respondent  came into Class I post.  from  October  27, 1946.   From  that day till July 23, 1954,  he  was  Private Secretary to three ministers.  Without giving credit for his service  as  Private  Secretary  his  immediate  junior  was promoted  as Deputy secretary.  The respondent field a  writ petition  in the High Court praying that the  order  denying him  credit for service as Private Secretary may be  quashed and for a directions for payment of such amounts as he would have  got had his due inter se seniorty and  promotion  been accorded to him.  The High Court granted both the In appeal to this Court, HELD  :  (i) The High Court was right in  holding  that  the respondent  was entitled to count his service  from  October 27,  1946,  for fixation of his seniority in  the  gradation list. (2)  The  High  Court,  however,  erred  in  directing   the appellant  to  give  the respondent  notional  promotion  as Deputy  Secretary  with effect from the date  on  which  his junior secured such Promotion and for payment of the  excess salary accruing to him on that footing. The power to promote an officer belongs to the executive and the  judicial power may control or review government  action but  cannot  extend to acting as if it were  the  Executive. The  Proper  direction  therefore,  can  only  be  that  the government  should  reconsider the case  of  the  respondent afresh  for purposes of notional promotion.  If the  service rule  entitles him to promotion on the ground  of  seniority alone,  Government should, except for the strongest  reason, grant  the  benefit of promotion with effect from  the  date when his junior became Deputy Secretary especially, because, nothing  had  been suggested against the respondent  in  his career  to  disentitle him to promotion.   However,  if  the criterion  for  promotion  is  one  of   seniority-cum-merit comparative  merit  may  have to be assessed  if  length  of service is equal, or an outstanding junior is available  for promotion. [88F] (3)  The appellant State should apply to the respondent  the

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same rule of promotion as was applied to his junior and  not to  act adversely without giving him an opportunity.   Since the  respondent  had  retired from  service,  the  appellant should also consider promptly his claim and make payment  to him of what is due to him without further delay. [91A] State of Mysore v. Syed Mahmood, [1968] 3 S. C. R. 363,  366 and State of Mysore v.   P. N. Nanjundiah, [1969] 3 S. C. C. 633,637 followed. (4)  The   appellant’s  inexplicable  indifference  is   not placing  before  the  Court  the  relevant  rule   regarding promotion  to the post of Deputy Secretary merits the  order that  the appellant should pay the costs of  the  respondent even though the appeal is partly allowed.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 875 of 1968. From the judgment and order dated the 28th July 1967 of  the Mysore High Court at Bangalore in Writ Petition No. 2378  of 1965. V.S. Desai and M. Veerappa, for the appellant. 88 B.R.L. Iyangar, S.S.Javali and A.G. Ratnaparkhi, for respon- dent No. 1. The judgment of the Court was delivered by KRisHNA  IYER, J. The State of Karnataka,  appellant  before us,  has  raised two contentions, the first being  the  more material  but less meritorious and the second secondary  but substantial.   The first respondent herein filed a  petition under  art.  226 seeking several reliefs including  (a)  the quashing of an order denying him credit for service while he was  Private  Secretary to three  Ministers  beginning  from October   27,   1946  till  July  23,   1954   (with   minor interruptions  when  he  served  in  other  capacities,   an inconsequential circumstance in this case) when he was  made Assistant Secretary, and (b) a direction for payment of such amounts  as he would have got had Ms due inter se  seniority and promotion been accorded to him.  The High Court  granted both  reliefs and they are challenged in this Court.   There is  no doubt, on the pleadings and indubitable  evidence  on record,  that the petitioner came into a Class I  post  from October 27, 1946 and his claim to service since then runnine continuously,  is  undeniable.   Learned  counsel  for   the appellant has fairly and rightly conceded the legitimacy  of this  claim.  Indeed, the State Government had accepted  the petitioner’s  right based on the equivalence of the post  of Private Secretary and of Assistant Secretary but the Central Government did not agree, and when confronted in Court  with overwhelming proof pleaded apologetically that they were not in   possession  of  the  full  facts  when  rejecting   the petitioner’s  seniority  plea.   We affirm  that  the  first respondent is entitled to count his service from October 27, 1946 for fixation in the gradation list. Flowing from this finding is the direction by the High Court to   give  the  petitioner  notional  promotion  as   Deputy Secretary  with  effect  from  the  date  on  which  one  P. Venkataraman, next below him, secured such promotion and for payment  of  the  excess  salary accruing  to  him  on  that footing.   This part of the judgment is attacked  as  beyond the  power of the Court.  We see the soundness of this  sub- mission.   In our constitutional scheme, a broad  three-fold division exists.  The power to promote an officer belongs to the  Executive and the judicial power may control or  review government  action  but ,cannot, extend to acting as  if  it

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were  the  Executive.  The Court may  issue  directions  but leave  it to the Executive to carry it out.   The  judiciary cannot  promote or demote officials but may demolish  a  bad order  of  Government or order  reconsideration  on  correct principles.   What  has been done here is in excess  of  its jurisdiction.   Assuming  the  petitioner’s  seniority  over Venkataraman,  how can the Court say that the  former  would have  been,  for  certain, promoted ? Basically,  it  is  in government’s   discretionary  power,  fairly  exercised   to promote  a government servant.  If the rule of promotion  is one  of sheer seniority it may well be that promotion  is  a matter of course.  On the other hand if  seniority-cum-merit is the rule, as in the Supreme Court decisions cited  before us, promotion is problematical.  In the absence of  positive proof  of  the relevant service rules, it  is  hazardous  to assume 89 that  by efflux of time the petitioner would have  spiralled up  to  Deputy  Secretaryship.  How could  we  speculate  in retrospect  what  the rule was and  whether  the  petitioner would  have  been selected on merit and on the  strength  of such  dubious hypothesis direct retroactive  ,promotion  and back  pay?   The  frontiers  of  judicial  power  cannot  be stretched  thus for.  The proper direction can only be  that government  will  re-consider  the case  of  the  petitioner afresh  for purposes of notional promotion, If  the  service rule  entitles him to promotion on the ground  of  seniority alone, Government will except for the strongest reason grant the   benefit  of  promotion  with  effect  from  the   date Venkataraman  became  Deputy Secretary.   Nothing  has  been suggested   against  the  petitioner  in  his   carrier   to disentitle him to. promotion and we have no doubt Government will  give  him  his meed.  However, if  the  criterion  for promotion  is one of seniority-cum-merit, comparative  merit may have to be assessed if length of service is equal or  an outstanding junior is available for promotion.  On the facts before  us,  there is no reason to regard  the  petitioner’s eligibility  on merit for Deputy Secretaryship to be  denied or delayed when Venkataraman was promoted. Counsel  for the State made reasonable efforts to  help  the Court  with the relevant rule but his  client’s  cooperation was  not forthcoming.  We direct the appellant to  apply  to the  first  respondent  the same rule of  promotion  as  was applied  to Venkataraman and, to be fair enough, not to  act adversely  without giving him an opportunity.  In the  light of  the  State’s reluctance to produce the  rule  we  almost think the High Court order is substantially just.  Even  so, it  is  for  the Government to  promote  with  retrospective effect.   We,  therefore, set aside the second part  of  the High Court’s order in the judicial hope that justice will be done to the petitioner. The  pragmatic limitation on judicial power we have  set  is not novel but traditional, as is evident from the two recent rulings  of  this Court--both rendered in appeals  from  the Mysore  High  Court-where  probably  judicial  promotion  of executive  officers was perhaps not viewed as  an  avoidable encroachment. In  State  of  Mysore  v.  Syed  Mahmood(1).   Bachawat  J., speaking  for the Court, held in a case where the  promotion of an officer was involved that the proper direction  should be that the State Government should "consider the fitness of Syed  Mahmood  and Bhao Rao for promotion in 1959  ....  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

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perform its duly, the Court may direct it to promote them as from 1959." The Court concluded in that case thus :               "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 prom oted, and               if  so, what consequential  monetary  benefits               should be allowed to them."               (1)   [1968] 3 S.C.R. 363, 366.               90               .lm0               Similarly,  in  State  of  Mysore  v.  P.   N.               Nunjundiah(1), Ramaswami, J., speaking for the               Court, dealt with a service dispute and  while               agreeing  with the substantive  conclusion  of               the High Court modified the order in so far as               the  promotion was ordered by the Court.   The               learned Judge observed :               "The  argument was stressed on behalf  of  the               appellants  that in any event the  High  Court               was  not right in issuing a writ  of  mandamus               "directing  the  appellants  to  promote  res-               pondent  No.  1 as Overseer with  effect  from               February 1, 1961 and as Supervisor with effect               from  April  1,  1963  and  to  give  him  all               consequential benefits.  In our opinion  there               is  justification for this argument.   It  has               been pointed out by this Court in The State of               Mysore v. Syed Mahmood and others (supra) that               in matters of this description the High  Court               ’ought not to issue writs directing the  State               Government  to promote the aggrieved  officers               with retrospective effect.  The correct proce-               dure for the High Court was to issue a writ to               the State Government compelling it to  perform               its duty and to consider whether having regard               to   his   seniority-and   fitness   the   1st               respondent  should have been promoted  on  the               relevant   date  and  so  what   consequential               benefits  should  be allowed to him.   In  the               present   case  we  are  informed  that   both               respondent  No.  1 and respondent No.  2  have               been promoted as Overseers after the filing of               the  writ petition.  In the  circumstances  we               consider  that  proper course is  to  issue  a               direction   to  the  appellants  to   consider               whether the respondent No. 1 should have  been               promoted  to the post of Overseer with  effect               from December 1, 1961 and as a Supervisor with               effect from April 1, 1963, what should be  the               relative seniority as between respondent No. 1               and  respondent No. 2 and  what  consequential               benefits  should be allowed to respondent  No.               1". We respectfully agree with the guideline furnished by  these two decisions which fortify the view we have taken. While  we agree that the High Court has been impelled  by  a right judicial instinct to undo injustice to an  individual, we  feel that a finer perception of the limits  of  judicial review would have forbidden it from going beyond-  directing the  Executive  to  reconsider  and doing  it  on  its  own, venturing into an area of surmise and speculation in  regard to  the  possibilities  of  escalation  in  service  of  the

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appellant.    Judicial  expansionism,  like   allowing   the judicial  sword to rust in its armoury where it needs to  be used,  can upset the constitutional symmetry and damage  the constitutional design of our founding document. The  length of this litigation has really  disappointed  the petitioner by denying him the enjoyment of likely promotion. He  retired the day before the judgment of the  High  Court. No one in service would be affected by the allowance of  the petitioner’s claim and what was a service issue has now been reduced  to  one  of money payment.   A  retired  government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the pecuniary (1)  [1969] 3 S.C.C. 633, 637. 91 expectation of the superannuated public servant-not  unusual it? government-we direct the appellant to consider  promptly the  claim of the petitioner in the light of our  directions and make payment of what is his due-if so found-on or before April 15, 1974.  The, government’s inexplicable indifference in not placing before the Court the relevant rule  regarding promotion  to the post of Deputy Secretary merits the  order that  the appellant pay the costs of the  petitioner/  first respondent  ; for, the wages of winner’s sloth is denial  of costs, and something more. In  the  result the appeal fails in the first  part  and  is allowed in the latter part on the lines indicated above  and subject to the directions  regarding costs just stated. Appeal partly allowed. V.P.S. 92