State of Mysore & ANR Vs. H.
Srinivasamurthy  INSC 12 (29 January 1976)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 1104 1976 SCR (3) 256 1976
SCC (1) 817
Constitution of India-Articles 14 and 16-Penalty-
Discrimination Civil Service-Departing from Administrative Policy.
The respondent entered service of the State
of Mysore in 1935 as instructor of Tailoring in the Department of Public
Instruction. In 1949 he went on deputation in the Polytechnic Institute at
Devangere. One K. N. Chetty who was far junior to respondent was also sent on
deputation to another similar institution in 1949. K. N. Chetty was absorbed
from the date he went or deputation in the new post but respondent was not so absorbed.
In 1955, for no fault of the respondent, Government passed orders reverting him
to his parent department. In 1956, respondent, was again posted on deputation.
The intervening period between his reversion and re-posting was treated as
leave. On reorganisation of State respondent's services were allotted to the
new State of Mysore. The respondent made several representations and stated
that he was discriminated against and treated differently from K. N. Chetty who
was junior to him in the parent department. The Public Service Commission found
that respondent's case was on all fours with that of Chetty and that he
deserved similar treatment. The Commission found that the temporary reversion
of the respondent lo his parent department was not justified. The Government in
1964 ordered the absorption of the respondent in the Department of Technical
Education from the date of the order subject to the conditions that he would
not be entitled to the benefit of revision of scales of pay that had been
effected in 1957 and 1961 and that he would not be given any more financial
benefit or revision of pay or addition increment for his previous service.
The respondent filed a Writ Petition
challenging these condition and praying for a direction that he should be absorbed
in the Department of Technical Education from the date of his initial
appointment in 1949, and granted consequential benefits or the revision of pay
The appellant opposed the Writ Petition on
the grounds that the respondent had no legal right to be absorbed in the
Department of Technical, Education with effect from. a particular interior date
or to be given the revised pay scales applicable to those borne permanently in
the service of that department. Chetty's case was sought to be distinguished on
the ground that he was absorbed in the year 1951 as against the respondent's
absorption in 1964 and that there was a break in the service of the respondent.
The High Court allowed the Writ Petition and
issued a direction that absorption of the respondent in the Department of
Technical Education be given effect from 1949 when he initially assumed duty on
deputation. The High Court also declared that he would be-entitled to all
The appellant in an appeal by Special Leave relied
on the judgment of this Hon'ble Court in the case of K. V. Rajalakshmiah Setty
v. State of Mysore  2 S.C.I. 70.
Dismissing the appeal,
HELD: In the present case it appears that the
State had evolved a principle pursuant to which all the employees who came on
deputation from the departments to the Polytechnic excepting the respondent,
were absorbed permanently in the Department of Technical Education with effect
from the dates on which they came on deputation. Even Chetty who was admittedly
junior to the respondent and was identically situated was accorded the same
treatment. It is an undisputed fact that 6 other employees who were similarly
situated were absorbed from the date on which they initially joined duty after
deputation to the Polytechnic. [259 A-C, 260 D] 256 There was no justification
whatever to depart from this principle of policy in the case of the respondent.
His reversion was not ordered owing to any fault on his part.
The said reversion could not be treated as a
break in service since it was treated as leave, nor did it amount to reduction
in rank. 60 F-H] The High Court was therefore, justified in granting the
relief, it did to the respondent. 261 Bl 'Rajalakshmiah Setty v. State of
Mysore,  2 S.C.R. 70, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 722 of 1968.
Appeal by Special Leave from the Judgment and
order dated the 17th July, 1967 of the Mysore High Court in Writ Petition No.
989 of 1965.
Narayan Nettar and K. R. Nagaraja for the
Mrs. Shyamla Pappu and Vineet Kumar for the
The Judgment of the Court was delivered by
SARKARIA, J.-The circumstances leading to this appeal, directed against a
judgment of the High Court of Mysore, are as follows:
The respondent herein entered the service of
the Princely State of Mysore in 1935 as Instructor of Tailoring in the
Department of Public Instructions. In 1949, three occupational Institutes
(Polytechnics) at Hassan, Devangere and Chintamani were started in the State.
The respondent was sent on deputation to serve in the Polytechnic at Devangere
as Instructor in Tailoring and he joined the new post on November 28, 1949. One
Shri K. Narayanaswamy Chetty who was also an Instructor in Tailoring in the
Department of Public instruction was also deputed to the occupational Institute
at Hassan and joined duty there on December 1, 1949. This K. N. Chetty was .
far junior to the respondent in service.
Special officer-in-Charge of the three
occupational Institutes considered the names of the respondent and K. N. Chetty
for absorption as Instructors in Tailoring and recommended for their absorption
with effect from the respective dates of their joining duty, after deputation,
in the Institutes. Accordingly K. N. Chetty was absorbed with effect from
December 1, 1949, but no order was passed in the case of the respondent despite
repeated representations made by the latter.
In 1953, the then State of Mysore set up the
Department of Technical Education and the Polytechnic at Devangere became part
of that Department. The respondent continued tp serve on deputation in that
Department. In 1955, for no fault of the respondent, the Government passed
orders reverting him to his parent Department. On June 11, 1956, the respondent
was again posted on deputation as- Instructor in Tailoring in the Polytechnic
at Bellary "on provisional basis". The intervening period between his
reversion and reposting to the Polytechnic was treated as leave. On the
re-organization of States with effect from November 1, 1956, his services were
allotted to the new State of Mysore. The respondent continued to make
representations to the effect that like other employees who were taken on
deputation from other Departments, he should also be absorbed in the Department
of Technical Education with effect from November 28, 1949, which was the date
on which he initially came on deputation.
257 His specific grievance was that in any
case, he could not be discriminated against and treated differently from K. N. Chetty
who was junior to him in the parent Department and came on deputation to the
Polytechnic establishment subsequently. The State Government referred the
respondent's case to the Public Service Commission who examined it and by a
communication, dated February 2, 1960, made these recommendations in favour of
"It is stated in the Government letter
dated 26- 10-1959 that the Director who was the Unit officer for both the
departments ordered the transfer of Sri Srinivasa Murthy who was fully
qualified as Tailoring Instructor in the Technical Education Department and
there was no need to classify the vacancy post to which he was transferred
under the then existing rules. Along with him Sri K. Narayanaswamy C: Chetty
who was his junior and possessing similar qualifications was transferred as
Tailoring Instructor in the Technical Education Department and was absorbed in
the same department by Government in consultation with the Public Service
Commission. The case of Sri Srinivasamurthy is on all fours with that of Sri Narayanaswamy
Chetty and he is deserving of similar treatment. D' In view of the above, and
since Sri Srinivasa Murthy, who was fully qualified was transferred in 1949 by
the Director and appointed as Tailoring Instructor under the rules then in
force, and as his reversion at this distance of time for no fault of his would
cause a great hardship to him, the Commission are of the opinion that he may be
absorbed as Tailoring Instructor from the date of his appointment as such as
has been ordered in the case of Sri K. Narayanaswamy Chetty." In the
opinion of the Commission, the temporary reversion of the respondent to his
parent department in 1955-56, was not justified.
Ultimately, the Government by order, dated
February 19, 1964, ordered the absorption of the respondent in the Department
of Technical Education in the grade of Rs. 150 with effect from the date of the
order, in the vacancy in which he was working, subject to these conditions.
(a) that he would not be entitled to the
benefit of revision of scales of pay that had been effected in 1957 & 1961
by way of increments or weightage benefit accruing . there under, (b) that he
would not be given any more financial benefit or revision of pay or additional
increments for his previous service.
Against this order the respondent made
representations to the Government praying that his absorption should be related
back to 1949 and he be given the benefit of the revisions of pay scale,
including weigh tage benefit. The Government did not accept the representation.
258 On April 21, 1965, the respondent filed a
writ petition under Article 226 of the Constitution in the High Court, for the
issue of a writ of mandamus directing his absorption in the Department of
Technical Education from the date of his initial appointment therein, namely,
November 28, 1949, and to give him benefits of the revisions of pay scales
effected in 1957 and 1961 and weight age benefits there under. The order dated
February 19, 1964, was impugned on the ground that he had been invidiously
discriminated against in the matter of absorption and appointment, while his
junior K. Narayanaswamy Chetty, whose case was identical in all respects, and
six other officers who were similarly situated, were absorbed in the Department
of Technical Education with effect from the initial date of joining duty on
deputation. It was contended that in making the impugned order, contrary to the
recommendations of the State Public Service Commission, the State Government
had acted arbitrarily and in violation of Articles 14 and 16 of the
The petition was opposed by the appellant,
who in its counter affidavit. contended that the respondent had no legal right
to be absorbed in the service of the Department of Technical Education from a
particular anterior date, or to be given the revised pay scales applicable to
those borne permanently in the service of that Department. It was further
contended that the case of the respondent did not stand on the same footing as
that of Narayanaswamy Chetty because the order of Chetty's absorption was
passed in 1951 and that of the respondent's absorption in 1964, and there was a
break in the service of the respondent in the Department of Technical
Education, in 1955-56. It was stated that the absorption of the employees which
came on :
deputation from a particular date, was a
concession which could not be claimed as of right, and consequently, a writ of
mandamus, as prayed for by the respondent, should not be issued.
The High Court allowed the writ petition and
issued a direction that the absorption of the respondent in the Department of
Technical Education, be given effect from November 28, 1949 when he initially
resumed duty on deputation to the Polytechnic at Devangere. The High Court
further declared that he will be entitled to all consequential benefits from
such absorption including the benefit of revision of pay scales in the years
1957 and 1961 and also weightage benefits.
Hence this appeal by the State.
Mr. Nettar appearing for the appellant
contends that this case is fully covered by this Court's decision in K. V. Rajalakshmiah
Setty and Anr. v. State of Mysore and Anr. (1.
The point canvassed by the Counsel is, that
the absorption of K. N. Chetty and five others, with effect from particular
anterior dates, was not made in pursuance of any principle of policy or
statutory rule, but was done as a matter of concession. It is urged that
Articles 14 and 16 of the Constitution cannot be invoked to enforce a mere
Counsel has further made an attempt to show
that the respondent and K. N. Chetty were not similarly situated because there
was a break in the respondent's service with the Department of Technical
(1)  2 S.C.R. 70.
259 As against this, Mrs. Shyamla Pappu
submits that in Rajalakshmiah Setty's case (supra), the facts were entirely
different. It is emphasised that in the present case, seven employees had come
on deputation from other Departments to the Polytechnics and all of them,
excepting the respondent, were absorbed permanently in the Department of
Technical Education with effect from the dates on which they came on
deputation. Even Narayanaswamy Chetty, who was admittedly junior to the
respondent, and was identically situated, was accorded the same treatment. It
is urged that this principle of policy r was ignored in the case of the
respondent, and he was without reason singled out for unfair discriminatory
treatment. It is pointed out that his so-called "reversion" to the
parent Department in 1958 for a short period, was a misnomer. It was not a
reduction in rank, nor a break in the continuity of his service. Moreover, it
was, as the Public Service Commission found, undeserved and could not, by any
stretch of reasoning, be considered a ground for meting out discriminatory
treatment to the respondent.
We find a good deal of force in the arguments
of the learned Counsel for the respondent.
Rajalakshmiah Setty v. State of Mysore
(supra) is clearly distinguishable from the facts of the present case.
In that case, the Government of the then State
of Mysore, by a notification dated December 12, 1949, directed that the
promotions of 63 petitioners therein, from the post of Surveyors as Assistant
Engineers were to take effect from that date irrespective of the dates on which
they were put in charge of sub-divisions. But by a notification dated May 17,
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 similarly promoted as Assistant Engineers
with retrospective effect from 1st November 1956, when the new State of Mysore
emerged under the States Reorganization Act.
The petitioners therein filed a writ petition
praying for the issue 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 High
Court dismissed petition. On appeal, this Court ; held that the concession
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. It was
observed that there was no service rule which the State Government had
transgressed, nor the State had evolved any principle to be followed in respect
of persons who were promoted to the rank of Assistant Engineers from surveyors.
It may be noted that the grant of the relief
prayed for by the 63 petitioners, would have unsettled and caused wholesale
alterations of 260 the seniority list with regard to the entire cadre of
Engineers thus affecting persons who were not before the Court and who would
have been r condemned unheard. Further, acceptance of the petitioners'
contentions would have unsettled pre-Constitution matters, and it would have
been directly productive of results going against s. 115(7) of the States
Re-organization Act. Furthermore, the petitioners in that case . claimed to be
promoted with' effect from past dates. There was no , principle of policy or
service rule on the basis of which they could ` claim such promotions as of
right. ' Lastly, the petitioners in that case were found guilty of serious
Such impediments in the way of the relief
claimed by the respondent, do not exist in the present case. It appears to us
that the acceptance of the respondent's contentions in the present case cannot
lead to any untoward results such as were apprehended in Rajalakshmiah's case
(supra). Indeed, it has not been shown that the absorption of the respondent
with effect from November, 1949, would adversely affect even Narayanaswamy
Chetty, who was admittedly junior to him in the parent Department.
On the` other hand, it is an undisputed fact
that sit other employees, who were similarly situated, were absorbed from the
dates on which they initially joined duty, after deputation to the
Polytechnics. It is not the case of the appellant that this principle whereby
the absorption in the Department of Technical Education was related back to the
date on which a person initially came on deputation, was ever departed from,
excepting in the case of the respondent.
This being the case, the High Court was right
in holding that the State Government had evolved a principle "that if a
person was deputed to the Department of Technical Education from another
department and he stayed on in that other department for a reasonable long time
his absorption in that department should be made to relate back to the date on
which he was initially sent". There was no justification whatever to depart
from this principle of policy in the case of the respondent, who was, in all
material respects, in the same situation as K. N. Chetty. very rightly, the
High Court has held that his "impermissible reversion" for a short
while in 1955 to the parent department was no ground to hold that he was not
similarly situated as K. Nariayanaswamy Chetty. This so-called reversion to the
parent Department for a short period- in 1955-56, could not by any reckoning,
be treated as a break in his service, this period having been treated as leave.
Nor did it amount u ' to reduction in rank. In any case, this 'reversion' was
not ordered owing to any fault of the respondent. It is not the appellant's
case " that the respondent's work in the Department of Technical Education
261 was found unsatisfactory or that he was not otherwise suitable or qualified
to hold the post of Tailoring Instructor in that Department. That he was
suitable to be absorbed in that post, is manifest from the recommendation of
the Public Service Commission and is implicit in the impugned order, itself.
For the reasons aforesaid, we are of opinion
that in the special circumstances of this case, the High Court was fully
justified in granting the relief, it did, to the respondent.
The appeal fails and is dismissed with costs.
P.H.P. Appeal dismissed.