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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: M.H.BELLARY

DATE OF JUDGMENT: 25/03/1964

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1965 AIR  868            1964 SCR  (7) 471  CITATOR INFO :  E          1968 SC1113  (4)  F          1971 SC2111  (7)  F          1979 SC1596  (35)  D          1988 SC 968  (8,13)

ACT: Bombay  Civil  Servic  Rules-  Government  Servant  of   one department  sent on deputation to another department-On  re- version  entitled  to,  the promotions  based  on  merit-cum seniority basis in the parent department-Breach of Statutory Rule  under  Art.  309  gives  rise  to  cause  of   action- Constitution  of India, Art. 309, 313-Bombay  Civil  Service Rules, R. 50(b).

HEADNOTE: The  respondent  was  a Government servant  in  one  of  the departments  of  the  Bombay Government.   He  was  sent  on deputation to another department and after serving there for a long period and getting a number of promotions he was  re- verted  back  to  his parent department and  ordered  to  be posted   at  a  considerably  lower  grade,  while   another Government  servant who was below his rank was  promoted  as Assistant  Secretary.   Thereupon  the  respondent  filed  a petition under Art. 226 of the Constitution challenging  the order of his posting.  A preliminary objection was raised by the  appellant that the petition was not maintainable.   But the  High  Court held that the respondent  was  entitled  to invoke  the  jurisdiction  of  the Court  when  there  is  a violation of a statutory rule and on merits it held that the respondent was entitled to the relief claimed.  The  present appeal was filed on a certificate granted by the High  Court under Art. 133 of the Constitution. Before  this Court in view of the decision State of U.P.  v. Babu  Ram Upadhya. [1961] 2 S.C.R. 679 it was  not  disputed that if there was a breach of a statutory rule framed  under Art.  309  or continued under Art. 313 in  relation  to  the condition of service the aggrieved Government servant  could have recourse to the Court. The main contention on behalf of the appellant was that  the

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respondent  was not entitled to be appointed to  any  higher post  than  as  a Senior Assistant or to  receive  a  salary higher  than that which had been granted to him by  the  im- pugned order. Held:  (i) Assuming that this was a case where  the  respon- ,dent had a lien and his lien had not been suspended it  was not  possible  to interpret Rule 50(b) of the  Bombay  Civil Service Rules as providing different criteria to cases where a Government servant had a lien and where his lien has  been suspended. The  Rule and the circular make it abundantly clear that  an officer  on  deputation in another department shall  be  re- stored to the position he would have occupied in his  parent department had he not been deputed. (ii) Where promotions are based on seniority-cum-merit basis an  officer  on deputation has a legal right to  claim  pro- motion  to a higher post in his parent -department  provided his  service  in  the  department to which  he  is  lent  is satisfactory.   This  may  not  be the  case  in  regard  to selection posts. 472

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 677 of  1963. Appeal  from the judgment and order dated March 31, 1961  of the Mysore High Court in Writ Petition No. 283 of 1959. B. R. L. Iyengar and B. R. G. K. Achar, for the appellant. S.  V.  Venkataranga  Iyengar,  M.  Rama  Jois  and  A.   G. Ratnaparkhi, for the respondent. March 25, 1964.  The judgment of the Court was delivered by AYYANGAR,  J.- A very short  question regarding  the  proper construction  of  Rule 50(b) of the  Bombay  Civil  Services Rules is involved in this appeal which comes before us by  a certificate  of fitness granted by the High Court of  Mysore under Art. 133 of the Constitution. The facts giving rise to this appeal which are necessary  to be  narrated  to appreciate the only point urged  before  us were  these:  The  respondent  was  recruited  as  an  Upper Division  Clerk by the Government of Bombay in 1931 and  was later  appointed substantively as a Junior Assistant in  the Political  Department.  While so, on September 17, 1943  his services were transferred on deputation to the office of the Controller  of  Rationing,  Bombay  to  work  as  a   Senior Assistant  in the newly started Rationing  department  which was  a temporary department.  He obtained successive  promo- tions in this department and by March, 1954 he was drawing a pay  of  Rs.  460/-  p.m. in the  grade  Rs.  350-30-650  as Rationing Officer.  That department was abolished in  March, 1954  and thereafter he was reverted to his  parent  depart- ment.   Though his parent department was the  Political  De- partment,  the  respondent  was, after he  ceased  to  be  a Rationing Officer, posted first to the Labour Department and then  to the Public Works Department.  When  this  reversion took  place  his  pay  was  fixed  at  Rs.  120/-  p.m.  The petitioner protested against this reversion and this loss of his  emoluments on the ground that this fixation of pay  was contrary to the Rules framed by Government in regard to  the service conditions of a Government servant who was appointed on  deputation in another department.  He also  pointed  out that the officer next below him in his parent department had been appointed as an Assistant Secretary by virtue of normal and regular promotion. therefore, however, final orders were passed  on his representation by the Government  of  Bombay,

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the States Reorganisation Act, 1956 came into force and  the respondent was allotted to the State of Mysore.  On November 27,  1958 the Government of Mysore informed  the  respondent through an official memorandum that in view of 473 certain communications received by that Government from  the Government  of  Bombay in answer to his  representations  he should  be  considered  to  have held  the  post  of  Senior Assistant  on June 1, 1954 on a salary of Rs. 225/-  in  the grade Rs. 210-15-300.The petitioner’s complaint,however, was that  even this order was in violation of the conditions  of his service and he claimed that when he was reverted to  the parent  department  he  was  entitled to  be  posted  as  an Assistant Secretary-a post which according to him, he  would have  held  on  that date had he not  been  deputed  to  the department  of Civil Supplies on September 17, 1943.   There was no dispute that subject to an argument to which we shall refer presently, the respondent would have held the post  of Assistant  Secretary because the person next  below  him-one Nadkarni-actually   held  that  post  on  that   day.    The respondent claimed that on the basis of the Service Rules to which we shall immediately make reference he should, on  his return  to  the parent department, have been  posted  as  an Assistant Secretary and been allowed the scale of emoluments applicable  to  that  post.  As  the  Government  of  Mysore refused  to  accede  to his demand the  respondent  filed  a petition  under Art. 226 for inter alia a writ  of  mandamus directing  the appellant-State to include the petitioner  in the grade-pay of an Assistant Secretary I and fix him  above Nadkarni. The  appellant  raised a preliminary objection to  the  writ petition,  the  objection being that the  complaint  of  the petitioner  was not justiciable.  This was  primarily  based upon the fact that the respondent relied upon a circular  of the  Government of Bombay dated October 31, 1950 in  support of  his  plea that he was entitled to the  benefit  that  he claimed  on  reversion  to the parent  department  from  his service  on deputation.  The material part of that  circular ran:               "It has come to the notice of Government  that               Government  servants  when  deputed  to  other               Departments or offices often draw pay in  time               scales which are identical with the timescales               in  their  parent Departments.   The  question               therefore, arises on their reversion to  their               parent Department whether the service rendered               in  an identical time scale in the  Department               to  which their service had been lent,  should               be  allowed  to count for  increments  in  the               parent  Department under Note 4  below  Bombay               Civil Service Rule 41.  Government is  pleased               to  direct  that  all  such  cases  should  be               regulated  under Bombay Civil Service Rule  51               and that only that portion               of service in the foreign Department or office               should  be allowed to count for increments  in               the parent Department during which the  person               concerned  would  have drawn pay in  the  time               scale  applicable  to  the post  he  holds  on               reversion,  but for his deputation to  another               Department or office, i.e., the case should be               so  regulated as to restore the  position  the               person  concerned would have occupied  in  his               parent Department had he not been deputed." The  question as to whether this circular which was  treated

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as  an  administrative instruction could confer  rights  en- forceable in a court on a Government servant was referred to a Full Bench for its opinion.  Before the learned Judges  of the  Full  Bench  the  learned  Advocate-General,   however, brought to the notice of the Court that this circular merely gave effect to a statutory rule framed by the Government  of Bombay.  The relevant rule in this respect was rule 50(b) of the Bombay Civil Services Rules which ran:               "50(b)  Service in another post, other than  a               post  carrying less pay referred to in  clause               (a)  of  rule 22 whether in a  substantive  or               officiating  capacity, service  on  deputation               and  leave  other  than  extraordinary   leave               counts  for  increments  in  the  time   scale               applicable to the post on which the Government               servant holds a lien as well as in time  scale               applicable  to the post or posts, if  any,  on               which  he would hold a lien had his  lien  not               been suspended:               Provided  that Government may, in any case  in               which  they are satisfied that the  leave  was               taken  on account of illness or for any  other               cause beyond the Government servant’s control,               direct  that  extraordinary  leave  shall   be               counted for increment under this clause." The position, therefore, that emerged after this was whether an infraction of a statutory rule could give rise to a cause of  action to an aggrieved Government servant.  The  learned Judges answered this question in the affirmative and  there- after  the Division Bench which heard the  petition  allowed the  writ  and  granted the respondent the  relief  that  he sought.  It might be mentioned that even by the date of  the pendency  of  these  proceedings  in  the  High  Court   the respondent had retired on account of superannuation and  the only  question, therefore, was whether he would be  entitled to  the remuneration to which he, would have- been  entitled uader the rule in question.  The appellant-State applied  to the High Court 475 for  a certificate to enable an appeal to be filed  to  this Court  and  on this having been granted the  appeal  is  now before us. in  view  of  the decisions of this Court  of  which  it  is sufficient to refer to State of U.P. v. Babu Ram  Upadhya(1) it  was  not  disputed  that if there  was  a  breach  of  a statutory rule framed under Art. 309 or which was  continued under Art. 313 in relation to the conditions of service  the aggrieved  Government  servant could have  recourse  to  the Court for redress. Learned  Counsel  for  the  Appellant,  however  urged   two contentions in support of the stand that the respondent  was not  entitled to be appointed to any higher post than  as  a Senior  Assistant  or to receive a salary  higher  than  Rs. 225/in  the scale Rs. 210-15-300 which had been  granted  to him by the impugned order of November, 1958.  The first  was that on a proper construction of Rule 50(b), an officer  who after serving on deputation in another department is revert- ed to his parent department is entitled to nothing more than the increments allowable in the time scale applicable to the substantive  appointment  which he held at the time  of  the transfer.   In this connection stress was laid on the  words "increments  in  the time scale applicable to  the  post  on which the Government servant holds a lien" occurring in  the subrule.   We are unable to accept this contention.  In  the first  place,  it  is  not clear whether  the  case  of  the

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respondent  was  one where he held a lien or one  where  the lien  was suspended, and no material was placed  before  the Court in this regard, the point in this form not being urged in  the  High court.  But even assuming that it was  a  case where  the respondent had a lien and his lien had  not  been suspended  it is difficult to see what logic there could  be in interpreting the rule as providing different criteria  in the two cases.  ’Where the lien is suspended the rule speaks of the "post or posts, if any he would have held if his lien had  not been -suspended".  By the use of the plural, it  is clear  that the rule ,contemplated the suspended lien  being transferred  from one post to another-in other words,  to  a promotion from one post to another during the period of  the service in another ,department.  If there was any  ambiguity in  what the rule meant it is wholly dispelled by  reference to  the circular which ensures to the officer on  deputation in  another  department  that he shall be  restored  to  the position  he "would have occupied in his  parent  department had  he not been deputed".  It was not suggested that  there was any ambiguity in the wording of this circular which,  in our  opinion, gives proper effect to the provisions of  Rule 50(b).. (1)   [1961] 2 S.C.R. 679. 476 The   other  submission  of  learned  Counsel  was  that   a Government servant though he had a right to increments in  a time  scale applicable to the post that he held on the  date of  his transfer on deputation and on which he had  a  lien, had no legal right to be promoted to a higher post and  that the  construction adopted by the High Court  virtually  con- ceded or guaranteed to officers on deputation a right to  an automatic  promotion which they would not have had  if  they had not been posted on deputation.  We see no force in  this contention either.  Learned Counsel is right only in so  far as the promotion involved relates to a selection post.   But where   it   is   based   on   seniority-cum-merit,    those considerations are not relevant.  The service of an  officer on  deputation in another department is treated by the  rule as equivalent to service in the parent department and it  is this  equation between the services in the  two  departments that  forms the basis of Rule 50(b).  So long  therefore  as the  service  of  the  employee in  the  new  department  is satisfactory   and  he  is  obtaining  the  increments   and promotions in that department, it stands to reason that that satisfactory service and the manner of its discharge in  the post  he actually fills, should be deemed to be rendered  in the  parent  department  also  so  as  to  entitle  him   to promotions,  which  are often on  seniority-cummerit  basis. What  is  indicated  here is precisely  what  is  termed  in official  language  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.   If  there are  adverse  remarks against him in the new  department  or punishments inflicted on him there, different considerations would  arise and these adverse remarks etc. would and  could certainly  be  taken into account in the  parent  department also,  but  that is not the position here.  In view  of  the facts of the case it is not necessary to discuss this aspect in any detail or any further. The appeal fails and is dismissed with costs.                      Appeal dismissed. 477

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