STATE OF MYSORE V. C. R. SESHADRI
& ORS  INSC 7 (10 January 1974)
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 460 1974 SCR (3) 87 1974
SCC (4) 308
Civil Service--Promotion--Duty of Executive
and Courts in relation thereto.
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 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,  3 S. C. R. 363, 366 and State of Mysore v. P. N.
Nanjundiah,  3 S. C. C.
(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.
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
V.S. Desai and M. Veerappa, for the
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 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 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)  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 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
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)  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.