K. V. RAJALAKSHMIAH SETTY & ANR. versus STATE OF MYSORE AND ANR.

K. V. RAJALAKSHMIAH SETIY & ANR.

STATE OF MYSORE AND ANR.

November 7, 1966J

(K. N. WANCHOO, G. K. MITTER AND C. A. VAIDIAUNGAM, JJ.)j

Conrtitution of India, 1950, Art. 226--Writ of mandamus-Conct.r-.-slons shown by State to some officus-·When could be claimed by oth..rs.

In the State of Mysore, before it waa reorgani!ed under the States Reorganisation Act, 1956, surveyors who were posted .. omcera io charge .of sub-divisions were promoted aa Assistant Bngioeera. The petitionera ·were placed io charge of sub-divisions between December 1945 and Nov-ember 19491 and the then Government, by ootillcation dated 12th December 1949, ordered that their promotions were to take elfect from that date irnspective of the dates oo which they were put in charge of the sub-divisions. But, by notification dated 17th May 1950, the Oovem-melll showed concession to different batch of 41 surveyon, who bad been placed io charge of different sub-divisions between March 1944 and January 1946, by promoting them aa As•istant Bngintera, with effect from the dates of occurrence of vacancies, according to oeniority. Io November 1958, another batch of 107 peraons were promoted as Assistant Engineen .and they also were shown concession by giving their appointmenl.9 retrospective effect from !st November, 1956, when the new State of Mysore emerged under the States Reorganisation Act.

The petitioners filed writ petition io the High Coun, io 1964, contend-ing that there was nothing io the service rules which preventd the Gov-ernment from granting such concessions to the petitioners also, aod for the issue of writ of mandamus directing the State to llx their seniority also, oo the basis that they had become Assistant Eogioeen from the dates <>n which the vacancies to which they bad been posted uad occurred.

The petition was dismissed.

Oo appeal to this Court,

HELD : (a) The concessions shown to the batch of 41 persons who bad been appointed before the petitioners and to the batch of I 07 penons who had been appointed thereafter, were mere ad hoc concessions and not "Something which they could claim as of riflht. The Coun, tl>erefore, -could not issue writ of maudamus commanding the State to show such concession or other indulgence to the petitioners because, there waa no service rule which the State had transgressed, nor bad the State evolved 'Boy principle to be followed in respect of penoos who were promoted to the rank of Assistant Engineers from surveyors. [75 H-76 BJ

(~) The petitiooen, not having filed the petition within reaS<'oable time after 17th May 1950 were guilty of !aches, and were not entitled to any relief. 176 11-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.

S. V. Gupte, Solicitor-General and R. B. Dattar, for the appellants.

B. R. L. Iyengar, S. S. Javali and S. F. Nayar, for the respon-dents.

B, P. Singh and R. B. Dater, for the interveners.

The Jm~gment of the Court was delivered by

Mitter, J. These are two appeals from common judgment and order of the High Court of Mysore covering number of Writ Petitions filed in that Court on special leave granted ty this Court.

The appellants are two out of total number of 43 persons who filed separate petitions under Art. 226 of the Constitution before the Mysore High Court on October I, 1964. The main . prayer in all the petitions was that writ of mandamus should be issued commanding the State of Mysore to promote each peti-tioner to the cadre of Assistant Engineers from the date on which the petitioner was placed in charge of sub-division with all conse-D quential benefits. To put in short, the demand of the petitioners was that they should all receive benefits which others p~omoted before and after them had received. According to the petitions, some of these persons had received such benefits before the peti-tioners and some had been accorded similar advantages although they were promoted as Assistant Engineers Jong after the peti-E tioners, but the State of Mysore had, without any reason, jeciined to give similar benefits to the petitioners.

The facts as they emerge from the affidavits and the docu-ments referred to therein are as follows. The State c>f Mysore, before the States Reorganisation Act 1956, used to employ engineering graduates for 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, 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 promote<:'. with effect from January 17, 1947. By 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 witt weightage from October 1, 1948 in the revised scale of pay. The petitioners comprising batch of 63 surveyors were placed in chargeof 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 retro-spective effect from the dates they ·.vere placed in charge of sub-divisions. By letter dated Decembe1 5, 1948 addressed by t"e Secretary to the Governme.1t of lvlysore to the Chief Engineer, the latter was requested to post most of this batch of surveyors in-cluding one Siddaveerappa in charge of sub-divisions as shown in the accompanying statement pending issue of orders on the ques-tion 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 sub-divisions. On March 7, 1950 the Chief Engineer by his communication No. 1839-40 Est. sup-plied particulars to Government of the dates on which each of these 63 persons had assumed charge of sub-division. On Septem-ber 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 letter dated December 13, 1956, the Chief Engi-neer 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 :i1e vacancies had existed for over four years prior to that date. According to the Chief Engineer, had these persons been promoted as and when vacan-cies occurred, they would not only nave been in receipt of 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 cor..mented that in addition to this double disad-vantage co 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 previous batch of 41 supervisors already men-tioned. The letter ended with recommendation that similar consideration should be extended to these 63 persons and their ranks in the common civil list he fixed with reference to the date of occurrence of the vacancies. It appears that the Chief Engineer pursued this subject from time to time mal-ing his recommenda-tion about these persons. By letter dated July IO, 1957 the Chief

Engineer pointed out that as the Inter-State seniority list of Assis-tant 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 :'ie vacancies and their relative ranks in the integrated seniority list be fixed accordingly. Another .Jetter on the subject was addressed by the Chief Engineer to the State Go-vernment on December 28, 1957. With regard to the recom-mendation already made by him, the Chief Engineer enclosed modified Inter-State seniority list from serial numbers 28 to. 92 to show that only few Deputy Engineers of Bombay who were far junior in age and service would be ra11ked below these 63 per-sons 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 Octoher 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 retro-spective effect.

According to the appellants, they had been clearly discrimi-

nated against considering the case of 41 persons who had been appointed before them as well as the subsequent batches of sur-veyors who had been promoted after them. The petitioners' com-plaint 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 ser-vice 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 conceB-sions could be gi·ven to persons who had been appointed before these 63 persons as well as persons who had been appointed subse-H quently, there was no reason why such concessions should have been withheld from his clients. In c9nclusion, 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 Ml9Sup.Clf66-6

they bad become Assistant Engineers from the dates on which the vacancies to which they bad been posted had c,..:curred 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 Higl• Court, the idea behind giving some concession •o the batch of 41 persons was to give them some financial benefit ns from 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 Decem-ber 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 resuit in some junior officers being ranked above some senior per-sons and it was for this reason that Government had ordered the promotion of these 63 persons to take effect from the date of noti-fication 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 31-10-1956, 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 Go.vern-ment 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 pro-moted in 1963, it was said that they were all in charge of sub-divi-~ion:; from the dates subesquent to November 1, 1956 and there •· ·s no difficulty in promoting them from the dates on which they t.u assumed charge of sub-divisions. According to the State as:

"· these incidents occurred after the Reorganisation and the formation of new State, the new State of Mysore was perfectly justified in giving effect to their promotions accordingly."

With regard to the 63 persons, the point of view of the State of Mysore is that the new State which emerged after the Reorga-nisation 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, assum-ing that law il)cluded executive directions for the purpose of Art. 14 of the Constitution, we have to see : (a) whether there is rule which has been unevenly applied as among equals ; (b) if princi-ple 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 exe-cutive order which has been given effect to in different ways in different cases. Mr. Iyengar's sec©nd submission was that if the 63 persons were to be fixed in the cadre with respect to the dates on which they wen 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 thlrd submission was that giving effect to the contention of the appellants would be projecting Art. 14 to date before the Constitution came into force and thls could not be allowed. He also argued that the appellants had been guilty of !aches in making their applications in 1964 when they were really complaining of an order whlch 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 !st of November 1956 when the Reorganisation of States became effective.

Mr. Iyengar further contended that in reality 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 penons and the batches of persons who had come in after the batch of 63 persons also received some concession, but after all these we~e concessions and not something which they could claim as of right. The State of Mysore might have shown

some indulgence to this batch of 63 persons but we cannot issue writ of mandamus commanding it to do so. There was no ser-vice 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 position to say what, if any, ad hoc indulgence should be meted out to the appellants before us.

There is also good deal ~f force behind the contention that the appellants are guilty of !aches. After the passing of the order of May 17, 1950, they should have made an application within 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 dis.-criminatcd 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 dd!e 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. Mur.i Reddy who alone out of 37 persons was allowed to intervene in this appeal by our order made on I Ith October, 1966.

Appeal dismissed.