7 S.C.R. STATE OF MYSORE v. M. H. BELLARY IP. B. GAJENDRAGADKAR. C.J .• K. N. WANCHOO, J. c. SHAH, N. RAJAGOPALA AYYANGAR AND S. M. SIKRI, JJ.J Bombay Civil Service 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-Constituticn of India, Art. 309, 313-Bombay Civil Service Rules, R. 50(b). The respondent was a Government servant in one of the
departments of the Bombay Go\'ernment. He was sent on , ~eoutation 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. > considerably lower grade,
while another Government servant who was below his rank was promot·ed as Assistant Secretary. Thereupon the respondent file".! a petition under Art. 226 of the Constitution challenging the order of his post- ing. 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 re- lief 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 UP. 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 condi- tion of service the aggrieved GoV'ernment servant could have recourse to the Court.
The main contention on behalf of the appellant was 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 that which had been granted to him bv 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 Ser- vice 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.
March25 [1964) State of My801't 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.
v. M.H. Bellary B. R. L. Iyengar and B. R. G. K. Achar, for the appel- lant 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 .AyyafllJM, AYYANGAR, J.-A very short question regarding the pro- per construction of Rule 50(b) of the Bombay Civil Services Ruks is involved in this appeal which comes before us by
a certificate of fitness granted by the High Court of Mysore und~r 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 weri: these: The resporn;lent 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 draw- ing 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 wa:;, after he ceased to be a Ration- ing 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 Joss of his emolu- ments 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 re~ular promotion. Before. however. final orders were pas- sed. on his representation by the Government of Bombay,
the States Reorganisation Act, 1956 came into force and the respondent was allotted to the State of Mysore. On Novem- ber 27, 1958 the Government of Mysore informed the res- pondent through an official memorandum that in view of
78.C.R. 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 be- low him-one Nadkarni-actually held that post on that day. The respondent claimed that on the basis of the Ser-
vice 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 manda- mus directing the appellant-State to include the petitioner in the grade-pay of an Assistant Secretary and fix him above Nadkarni.
The appellant raised a preliminary objection to the writ petition, the objection being that the complaint of the peti· tioner was not justiciable. This was primarily based upon the- fact that the respondent relied upon a circular of the Govern- ment of Bombay dated October- 31, 1950 in support of his
plea that he was entitled to the benefit that he claimed on rever- sion 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 ~ervants when deputed to o.ther Departments or offices often draw pay in time scales which are identical with the time- scales 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 Depart~ ment under' Note 4 below Bombay Civil .Service Rule 4 I. Government is pleased to direct that all such cases should be regulated under Bombay
Civil Service Rule 51 and that only that ·portion Btatt of Myaore v. M.H. Bellarg Ayyangar, Suite of … lf ysore v. M.H. Bellary Ayyangar, J. [1964] of service in the foreign Department or office
should be allowed to count for increments in the parent Department during which 'the person con- cerned 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 treat- ed 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 carry- ing less pay referred to in clause (a) of rule 22 whether in a substantive or officiating capacity, service on deputation and leave other than extra-
ordinary leave counts for increments in the time scale applicable to the post on which the Govern- ment 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 came beyond
the Government servant's control, direct that extraordinary leave shall be counted for incre- ment 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 respond.en! had retired on account of superannuation and the only question, therefore, was whether he would be entitled to the remu-
neration to which he would have been entitled under the rule in question. The appellant-State applied to the High Court 78.C.R. 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 U padhya(') 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 clonditions of service the aggriev- ed 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 entitl.ed 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 sub- rule. We are unable to accept this contention. In the first place, it is not clear whether the case of the respondent was one where he held a lien or one where the lien was suspend- ed, and no material was placed before the Court in this re- gard, the point .in this form not being urged in the High
Court. But even assuming that it was a case where the res- pondent 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 !).ave held if his lien had not been 1'Uspended". By the use of the plural, it is clear that the rule <:ontemplated 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 de-
partment that he shall be restored to the position he "would have occupied in his parent department had he not been de- puted". 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) ..
('l [1961] 2 S.C.R. 679. State of My-~ore M. H. Bellary Ayya'tll}ar, J, . 1964 Stale of JrJy.sore v. M. H. Bella1y Ayyan3ar, J. (1964) The other submission of learned Counsel was tnat 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 cont,!ntion 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 servir,e 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 bet- ween 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 sl:ands to reason that that satisfactory service and the manner of '.ts 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-cum-
merit 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 punish- m!nts inflicted on him there, different considera.tions 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 cast.> ii is not necessary to discuss this aspect in any detail or any further. The appeal fails and is dismissed with costs.
Appeal dismissed.