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Mahadevayya (G.S.) Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2420 of 1965
Judge
Reported in(1969)ILLJ849Kant
ActsMysore Civil Services Rules - Rules 20, 41, 44 and 45
AppellantMahadevayya (G.S.)
RespondentState of Mysore and anr.
Excerpt:
.....appointment which was made in the year 1961 is still continuing as such, he is clearly entitled to a lien on the old post, namely, the post of a second division clerk......1961 he was selected by the public service commission for appointment to the post of a second grade typist. the public service commission's recommendation which was accepted by government, resulted in the appointment of the petitioner as an officiating typist, grade 2, on 2 september, 1961, by a government order made for that purpose. since then he has been continuing as an officiating second-grade typist. while he was holding that post during all these years he asked for fixation of his pay and other benefits as second grade typist, and on one occasion in the year 1962 he sought repatriation to the post of a second division clerk, but there was no such repatriation and there was no fixation of his pay as second-grade typist either. so he asks for a direction that, his pay and other.....
Judgment:

Somnath Ayyar, J.

1. The petitioner was a confirmed second division clerk in the Department of Health, and on 2 September, 1961 he was selected by the Public Service Commission for appointment to the post of a second grade typist. The Public Service Commission's recommendation which was accepted by Government, resulted in the appointment of the petitioner as an officiating typist, grade 2, on 2 September, 1961, by a Government order made for that purpose. Since then he has been continuing as an officiating second-grade typist. While he was holding that post during all these years he asked for fixation of his pay and other benefits as second grade typist, and on one occasion in the year 1962 he sought repatriation to the post of a second division clerk, but there was no such repatriation and there was no fixation of his pay as second-grade typist either. So he asks for a direction that, his pay and other benefits should be fixed in the new post of second-grade typist with effect from 31 August, 1959 and his rank in the grade of a first division clerk should be maintained until he was confirmed as a second-grade typist.

2. It is plain that the petitioner is undoubtedly entitled to the fixation of his pay and other benefits in the post of a second-grade typist according to rules. Sri Tilak Hegde contends that such fixation will have to take effect from 31 August, 1959. We make a direction that there shall be a fixation of the petitioner's pay and other benefits according to the relevant rules such as rules 41, 44 and 45 of the Mysore Civil Services Rules. This shall be done within three months from this date.

3. The other prayer made by the petitioner is that we should issue a direction for the retention of his lien and the rank 'on the basis of his seniority in the grade of first division clerks until he is confirmed as second-grade typist.' In support of this prayer dependence was placed on note 4 appearing underneath rule 20 of the Mysore Civil Services Rules. That note provides that a Government servant who has secured employment in one department of Government under the rules of recruitment and who seeks employment in another unit or department is entitled to the retention of his lien on the original appointment if he has been confirmed in that old post, and that such retention shall continue until his permanent absorption in the new post.

4. It is clear from this note appearing under rule 20 that, since the petitioner had been confirmed in the post of a second division clerk when he sought appointment as a second-grade typist and secured it, he was entitled to the retention of his lien on the post of a second division clerk until his permanent absorption as a second-grade typist. Since the petitioner has not yet been so permanently absorbed as a second-grade typist for the reason that the officiating appointment which was made in the year 1961 is still continuing as such, he is clearly entitled to a lien on the old post, namely, the post of a second division clerk.

5. The Government Pleader explained to us that the appointment of the petitioner as a second grade typist is a substantive appointment, and that his permanent absorption in that post had to be postponed by reason of difficulties which were encountered in the matter of the preparation of the relevant inter-State seniority list.

6. However that may be, since there has been no permanent absorption so far in the post of a second-grade typist, the petitioner has a right to retain his lien on the old post, namely, the post of a second division clerk. The Government Pleader also does not dispute that that lien to which the petitioner is entitled in that way has not terminated or come to an end, and the provisions of clause (g)(1) of rule 20 make it clear that the Government Pleader is right in taking that stand.

7. That being so, and since it is not contended before us that there has been a cessation of the lien of the petitioner on the post of a second division clerk, it is not necessary to issue any direction in that regard. That lien can terminate only on his permanent absorption in the post of a second-grade typist; until then it continues unimpaired.

8. But Sri Tilak Hegde asks us to issue a direction for the repatriation of the petitioner to his old department. He contends that if he had continued in the old department and in the old post, he would have by now become a first division clerk, and that the continuance of the lien on the old post entitles him to the benefit of the 'next below' rule which is rule 60 in the Mysore Civil Service Rules.

9. On this question we should not say anything in this writ petition, since that is not the direction which is sought by the petitioner in his application. It will be open to the petitioner to appeal to rule 60 and to invoke its provisions in support of his assertion that he is entitled to the benefit of that rule and to all the benefits emanating from it, and, if that claim when made is not conceded, it would be at that stage that the petitioner can seek appropriate redress in that regard. It is not necessary for us to say anything more on that question at this stage.

10. With respect to the period between 31st August, 1959 when the petitioner was appointed as an officiating second-grade typist for the first time and 2 September, 1961 when he was appointed on the selection made by the Public Service Commission, Sri Tilak Hegde states that the pay to which he was entitled under the memorandum dated 28th August, 1959 of the Director of Medical Services in Mysore was not paid to him. If the pay which was specified in the order by which he was appointed was not paid to him during that period, it should now be paid to him. No costs.


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