K. V. Rajalakshmiah Setty & ANR Vs.
State of Mysore & ANR [1966] INSC 247 (7 November 1966)
07/11/1966 MITTER, G.K.
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
mandamusConcessions 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 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]
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 petitioners 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 documents 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 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 pursued this subject from time to time making his recommendation 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 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 Government on December
28, 1957. With regard to the recommendation 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 discriminated 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 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 3110-1956, 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 sub esquent 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, assuming 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, 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.
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