State of Mysore vs M.H. Bellary

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 677 of 1963

Decision Date: 25 March 1964

Coram: N. Rajagopala Ayyangar, P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, S.M. Sikri

In the matter titled State of Mysore versus M H Bellary, the Supreme Court of India delivered its judgment on the twenty‑fifth day of March, 1964. The opinion was authored by Justice N Rajagopala Ayyangar, and the bench was composed of Justices N Rajagopala Ayyangar, P B Gajendragadkar, K N Wanchoo, J C Shah and S M Sikri. The case was recorded under the citation 1965 AIR 868 and also reported in the 1964 Supreme Court Reports at page 471, with subsequent citations appearing in later reports such as E 1968 SC1113 (4), F 1971 SC2111 (7), F 1979 SC1596 (35) and D 1988 SC 968 (8,13). The statutory framework discussed involved the Bombay Civil Service Rules, particularly Rule 50(b), and the constitutional provisions of Article 309 and Article 313 of the Constitution of India, which govern conditions of service for government employees.

The petitioner in the proceeding was the State of Mysore, while the respondent was M H Bellary, a government servant employed in a department of the Bombay Government. The respondent had been sent on deputation to another department, where he served for an extended period and received several promotions. Upon being reverted to his parent department, he was ordered to occupy a post of a considerably lower grade, whereas another government servant, who ranked below him, was promoted to the position of Assistant Secretary. In response to the posting order, the respondent filed a writ petition under Article 226 of the Constitution, challenging the legality of the order. The appellant raised a preliminary objection, contending that the petition was not maintainable. The High Court rejected that objection, holding that a violation of a statutory rule authorized the respondent to invoke the Court’s jurisdiction, and on the merits it found that the respondent was entitled to the relief he had claimed. The appellant then appealed to this Court on a certificate of fitness granted by the High Court under Article 133 of the Constitution.

Before this Court, reference was made to the decision in State of U P v Babu Ram Upadhya, reported in the 1961 Second Series of the Supreme Court Reports at page 679, establishing that a breach of a statutory rule framed under Article 309 or continued under Article 313, concerning conditions of service, permitted an aggrieved government servant to approach the Court. The principal contention advanced by the appellant was that the respondent should not be appointed to any post higher than that of Senior Assistant, nor should he receive a salary exceeding that which the impugned order had granted. The Court examined this contention and observed that, assuming the respondent possessed a lien that had not been suspended, it was not permissible to read Rule 50(b) of the Bombay Civil Service Rules as prescribing distinct criteria for cases where a government servant’s lien was either in force or suspended. The Court further noted that the language of the Rule, together with the accompanying circular, made it abundantly clear that an officer who had been on deputation to another department was to be restored to the position he would have occupied in his parent department had he not been deputed.

The Court observed that the officer would have occupied the position in his parent department if he had not been placed on deputation. Further, the Court held that where promotions are made on the basis of seniority together with merit, an officer who is serving on deputation has a legal right to claim promotion to a higher post in his parent department, provided that his service in the department to which he has been lent is satisfactory. The Court added that this right may not extend to posts that are filled by a selection process.

This appeal, designated as Civil Appeal No. 677 of 1963, arose from a judgment and order dated 31 March 1961 of the High Court of Mysore in Writ Petition No. 283 of 1959. Counsel for the appellant were B. R. L. Iyengar and B. R. G. K. Achar, while counsel for the respondent were S. V. Venkataranga Iyengar, M. Rama Jois and A. G. Ratnaparkhi. The appeal was heard on 25 March 1964, and the judgment was delivered by Justice Ayyangar. The matter presented a very narrow issue concerning the correct construction of Rule 50(b) of the Bombay Civil Services Rules, and the appeal was entertained after the High Court of Mysore granted a certificate of fitness under Article 133 of the Constitution.

The factual background relevant to this point was as follows. The respondent entered public service as an Upper Division Clerk in the Government of Bombay in 1931 and was subsequently appointed substantively as a Junior Assistant in the Political Department. On 17 September 1943 his services were transferred on deputation to the office of the Controller of Rationing, Bombay, where he served as a Senior Assistant in the newly created Rationing Department, which was a temporary establishment. While serving in that department he received successive promotions, and by March 1954 he was drawing a salary of Rs 460 per month in the grade Rs 350‑30‑650, holding the post of Rationing Officer.

The Rationing Department was abolished in March 1954, after which the respondent reverted to his parent department. Although his original parent department was the Political Department, upon reversion he was first posted to the Labour Department and subsequently to the Public Works Department. At the time of this reversion his salary was fixed at Rs 120 per month. The respondent protested this reversion and the consequent reduction in his emoluments, contending that the fixation of his pay was inconsistent with the service rules applicable to a government servant who had been appointed on deputation to another department. He further pointed out that the officer next junior to him in his parent department had been promoted to the post of Assistant Secretary through ordinary regular promotion. After the Government of Bombay issued final orders on his representation, the States Reorganisation Act, 1956 came into force, and the respondent was allotted to the State of Mysore. On 27 November 1958 the Government of Mysore, by an official memorandum, informed the respondent that, in view of certain communications received from the Government of Bombay, …

In response to the petitioner’s representations, the authorities stated that he should be deemed to have occupied the post of Senior Assistant as of 1 June 1954, drawing a salary of Rs 225 per month and being placed in the grade designated Rs 210‑15‑300. The petitioner objected to this order, asserting that it violated the terms of his service. He maintained that when he was transferred back to his parent department he was entitled to the position of Assistant Secretary, a post which, in his view, he would have held on that date had he not been seconded to the Department of Civil Supplies on 17 September 1943. There was no dispute, except for an argument to be considered later, that the respondent would have been an Assistant Secretary because the officer immediately junior to him, a Mr Nadkarni, actually occupied that post on the relevant day. Relying on the Service Rules, which the Court intended to cite momentarily, the respondent argued that on his return to the parent department he should have been posted as an Assistant Secretary and should have received the pay scale applicable to that rank.

Because the Government of Mysore declined to accede to his demand, the petitioner filed a petition under Article 226 seeking, among other reliefs, a writ of mandamus that would direct the State to place him in the grade‑pay of an Assistant Secretary I and to rank him above Mr Nadkarni. The State raised a preliminary objection, contending that the petitioner’s grievance was not justiciable. This objection was premised principally on the petitioner’s reliance upon a circular issued by the Government of Bombay on 31 October 1950, which he used to support his claim that he was entitled to the benefit sought on his reversion from deputation. The essential portion of that circular read: “It has come to the notice of Government that Government servants when deputed to other 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 Department under Note 4 below Bombay Civil Service Rule 41. Government is pleased to direct that all such cases should be regulated under Bombay Civil Service Rule 51 and that only that portion of service in the foreign Department or office should be allowed to count for increments in the parent Department during which the person concerned 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 issue then arose as to whether this circular, which had been treated as an administrative instruction, could confer enforceable rights on a Government servant.

In this case, the question of whether an administrative instruction could create rights enforceable in a court against the Government was referred to a Full Bench for its opinion. Before the learned judges of that Full Bench, the Advocate‑General drew the Court’s attention to the fact that the circular in dispute simply gave effect to a statutory rule that had been framed by the Government of Bombay. The specific rule involved was rule 50(b) of the Bombay Civil Services Rules, which read as follows: “50(b) Service in another post, other than a post carrying less pay referred to in clause (a) of rule 22 whether in a substantive or officiating capacity, service on deputation and leave other than extraordinary leave counts for increments in the time scale applicable to the post on which the Government 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 cause beyond the Government servant’s control, direct that extraordinary leave shall be counted for increment under this clause.” The legal issue that consequently arose was whether a breach of such a statutory rule could give rise to a cause of action for an aggrieved Government servant. The learned judges answered this issue in the affirmative, holding that a violation of the rule could indeed be the basis of a judicial claim. Following that conclusion, the Division Bench that heard the petition allowed the writ and granted to the respondent the relief he had sought. It is relevant to note that, by the time the proceedings were pending in the High Court, the respondent had already retired on superannuation, so the remaining question was whether he was entitled to the remuneration that the rule would have afforded him. The State, acting as appellant, applied to the High Court for a certificate that would enable an appeal to be filed before this Court; that certificate was granted, and consequently the appeal now lies before us. In view of earlier decisions of this Court, particularly the judgment in State of U.P. v. Babu Ram Upadhya, it was not contested that a breach of a statutory rule framed under Article 309, or continued under Article 313 in relation to conditions of service, permits the aggrieved Government servant to seek redress in this Court. Counsel for the appellant, however, advanced two contentions to argue that the respondent was not entitled to be appointed to any post higher than Senior Assistant, nor to receive a salary exceeding Rs 225 in the scale Rs 210‑15‑300 that had been fixed by the impugned order dated November 1958. The first contention asserted that a proper construction of Rule 50(b) would mean that an officer who, after serving on deputation in another department, is reverted to his parent department is only entitled to the increments permissible in the time scale applicable to the substantive appointment he held at the time of his transfer.

In that argument the appellant said that the respondent was entitled only to the increments that are permissible in the time scale that applies to the substantive post he occupied at the time of his transfer. The contention relied on the phrase “increments in the time scale applicable to the post on which the Government servant holds a lien” found in sub‑rule 50(b). The Court could not accept this submission. First, the record did not establish whether the respondent’s lien was in force or whether it had been suspended, and no evidence on that point was placed before the Court; the High Court had not raised the issue in that form. Even if it were assumed that the respondent possessed a lien that had not been suspended, the Court found no logical basis for reading the rule as imposing different standards in the two situations. The rule, when the lien is suspended, refers to “the post or posts, if any, he would have held if his lien had not been suspended.” The use of the plural term indicates that the rule envisaged the possibility of a suspended lien being transferred from one post to another, that is, a promotion occurring while the officer was serving in another department. Any uncertainty about the meaning of the rule is removed by reference to the circular which directs that an officer on deputation shall be restored to the position he “would have occupied in his parent department had he not been deputed.” No ambiguity in the circular’s wording was suggested, and the Court considered that the circular correctly gives effect to the provisions of Rule 50(b). The second argument advanced by counsel was that, although a Government servant may be entitled to increments in the time scale of the post he held on the date of his deputation and over which he had a lien, he possessed no legal right to be promoted to a higher post, and that the High Court’s construction effectively granted officers on deputation an automatic right to promotion that they would not have enjoyed otherwise. The Court found no merit in that argument either. The counsel’s point is valid only where the promotion in question is to a selection post; where promotion is based on seniority‑cum‑merit, that reasoning does not apply. Under Rule 50(b) the service rendered by an officer while on deputation in another department is treated as equivalent to service in his parent department, and this equivalence forms the basis of the rule. Accordingly, so long as the officer’s service in the new department is satisfactory and he receives the applicable increments and

The Court stated that when an officer obtains promotions in the department where he is deputed, his satisfactory service in that post should be deemed to have been rendered in the parent department as well. Consequently, the officer becomes eligible for promotions that are ordinarily based on seniority‑cum‑merit considerations and that follow the established hierarchical rules of service. The Court explained that this principle corresponds to what is formally known as the ‘next below rule’ within service regulations. Under that rule, an officer on deputation receives a paper promotion and is recorded as holding a higher post in the parent department when the officer immediately below him there is promoted. If the officer has adverse remarks or disciplinary punishments in the deputed department, those factors could be considered by the parent department in evaluating his service. However, the present case presented no such adverse observations, and therefore that line of enquiry was unnecessary to pursue. Accordingly, the Court found no reason to examine that particular aspect of the officer’s record any further, as it was irrelevant. The appeal was therefore dismissed, and the Court ordered that the costs of the proceedings be awarded against the appellant. The dismissal was pronounced with costs, and the order affirmed the lower tribunal’s decision without alteration.