1. Petitioner Sangappa Basappa Upnal who had been an officiating aval karkun or sheristedar had been reverted in consequence of an order dated 11 March, 1959, made by the Government of Mysore, to his substantive post of a clerk. (It would appear that subsequent to the said order of reversion the petitioner has been again promoted on an officiating basis to the post of an aval karkun in due course; but, this is not material for the purposes of the present writ petition.) The present writ petition has been filed for the purpose of getting an order from this Court quashing the said Government order dated 11 March 1959 (which is to be found in annexure H). Respondent 1 is the State of Mysore; respondent 2 is the Divisional Commissioner of Belgaum Division and respondent 3 is one Kalpavrix who also is an aval karkun and it is at his instance that the order as per annexure H was passed by the Government of Mysore. It may be stated that annexure H does not in terms refer to the petitioner, but it refers to a category of persons amongst whom is included the present petitioner.
2. It may be necessary, to understand the question arising in this case, to briefly set out certain material facts of the case. Prior to the reorganization of the States (which took place on 1 November, 1956), the petitioner was an official in the service of the Bombay Government. He was appointed, for the first time, as a clerk in the Bijapur Collector's Office, on 13 September, 1942. After he passed the sub-service examination, he was confirmed as a clerk, on 8 October, 1949. He appears to have been a satisfactory and efficient official; consequently, he was selected for serving in the Divisional Commissioner's Office at Belgaum. During that period, there was one examination called the Revenue Qualifying Examination, which these clerks had to pass in order to become eligible for being promoted as aval karkuns. The practice appeared to be that clerks who were found to be efficient and suitable were being selected for appearing for this examination. This was in addition to the necessary qualification, viz., that in the case of graduates, they should have put in a qualifying service of at least five years and in the case of non-graduates, they should have put in a qualifying service of seven years. Though the ordinary rule was that the officials should be permitted in the order of their seniority, for appearing for the said examination, occasionally junior clerks were also selected, for various reasons, to appear for this examination even though their seniors had not secured such a permission. The permission which was being so given to juniors on account of some special consideration, was being referred to as an out-of-turn permission. Anyhow, the petitioner was able to obtain such an out-of-turn permission to appear for the revenue qualifying examination. Accordingly, in October, 1950 he appeared for that examination and succeeded in passing the examination at the first attempt. According to the rules pertaining to seniority, as indicated by annexure C (which is a copy of the resolution of the Government of Bombay dated 13 January, 1949), the position, briefly stated, was as follows. The mere fact that a clerk who was relatively junior passed the examination while his seniors had not passed it, did not, by itself alter their seniorities. As long as his seniors succeeded in passing the revenue qualifying examination at the first or the second attempt (even though it be at an examination subsequent to that in which the junior had passed), the seniority as it obtained in the lower grade was maintained. It was only when the junior official had passed the revenue qualifying examination and his senior had either failed to pass that examination in two attempts or had claimed an exemption from passing, that the junior would be maintained even though the senior passed the revenue qualifying examination only subsequently, but in the first or second attempt. This position appears to have prevailed till the Bombay Government resolution dated 13 January, 1949 as per annexure D. By this resolution as per annexure D, the Government of Bombay directed that as from the revenue qualifying examination held in February 1952, the seniorities of the concerned officials would be regulated in the order of their passing the said examination. In respect of those officials who have passed this examination prior to the examination in February 1952, the Government of Bombay directed in this very same resolution as per annexure D, that they should obtain and maintain their seniority for promotion, according to the existing order. What the Government of Bombay appears to have meant by this is that those officials who had passed the revenue qualifying examination or some examination held prior to February 1952 would continue to be governed by the rules applicable to them prior to the order as per annexure D.
3. While such was the position which obtained under the relevant rules governing the conditions of the petitioner's service, at that time in the State of Bombay, the petitioner seems to have been promoted on an officiating basis as aval karkun, consequently on his passing the revenue qualifying examination held in October, 1950. While he was continuing to hold that post, the Government of Bombay passed another order dated 24 January, 1952 as per annexure E. It stated that the junior clerks were being granted permission to appear for the revenue qualifying examination while their seniors were not granted such permission. Indicating its disapproval to such out-of-turn permission being granted, the Government of Bombay directed that the clerks who had been appointed as aval karkuns in consequence of having passed the revenue qualifying examination after getting out-of-turn permissions, should not be confirmed as aval karkun until their immediate seniors were confirmed. A statement showing the names of the clerks who, in consequence of having been granted out-of-turn permissions, had passed the revenue qualifying examination and had been appointed as aval karkuns and in respect of whom the Government had directed that they should not be confirmed while their seniors were still unconfirmed, was appended to the order as per annexure E. Amongst the names mentioned in that statement is also to be found the name of the present petitioner. In consequence of this Government order as per annexure E, the Collector of Bijapur district wrote the letter dated 2 March, 1952, as per annexure E, to the Secretary to the Government in the Revenue Department of the State of Bombay. Adverting to the Government order as per annexure E, the Collector pointed out with reference to the officials whose names had been set out in the statement appended to the order as per annexure E, and asked for a confirmation of his presumption that if these officials had been already confirmed as aval karkuns, the same had to be cancelled. He also indicated in that letter the particular examination (by the year) at which those persons would have been eligible to appear had they been granted the permission in the normal course, with due regard to the claims of their seniors. In respect of the present petitioner, the Collector stated that he would have been eligible to appear at the examination held in October 1952. In reply, to the above query by the Collector, the Government of Bombay stated in their letter dated 29 April, 1952 that the presumption made by the Collector was correct. The position which resulted from this correspondence, was that the revenue qualifying examination for which the petitioner could have been permitted in the normal course, to appear, was that held in October 1952; secondly, the petitioner could not be confirmed as an aval karkun while his seniors remained unconfirmed. In consequence of the Government order as per annexure E and the correspondence between the Collector and the Government, above referred to, the petitioner was one of the persons who was reverted from the position of aval karkun to his substantive post as a clerk. From what has been stated by the petitioner at Para. III of his affidavit, the petitioner's representations to the Government of Bombay to cancel the order reverting him from the position of an aval karkun to his substantive post as a clerk, proved unsuccessful. This position continued until 1 November, 1956, the date of the reorganization of the States. The petitioner was one of the officials allotted to the new State of Mysore under the provisions of the States Reorganization Act. The petitioner thereafter continued to be holding the substantive post of a clerk in the new State of Mysore. Then, one Kadrolimath, who also had been a clerk in the State of Bombay and had been allotted to the new State of Mysore, under the provisions of the States Reorganization Act, made a representation to the Government of Mysore. His grievance appears to have been that for the purpose of fixation of seniority, the date that had to be taken into account was the actual date on which the revenue qualifying examination was passed by the concerned clerks; and not the deemed date which was being given by the Government of Bombay (in order to maintain the seniority of the other senior clerks who passed that examination at the first or second attempt, though at a subsequent date). The representation made by the said Kadrolimath found acceptance at the hands of the Government of Mysore which passed the order dated 10 March, 1958, a copy of which has been produced as annexure G. By this order, the Government of Mysore stated as follows :
'After carefully examining the case of Kadrolimath and all others similarly placed, Government is pleased to direct that all those officials who were granted permission by the ex-Commissioner S.D. out of turn and passed any examination earlier than the one held in February 1952 should be deemed to have passed the examination immediately preceding the one held in February 1952 and their seniority determined accordingly.'
4. In consequence of this order, the petitioner was one of those deemed to have passed the revenue qualifying examination which had been held in the State in the State of Bombay immediately prior to the examination in February 1952. It will be remembered that according to annexure F, if the petitioner had been given the permission in the normal course and (not out of turn), he would have sat for the examination held in October 1952; but by reason of the order as per annexure G, the petitioner was deemed to have passed the said qualifying examination immediately prior to that held in February 1952. To that extent, the petitioner gained an advantage from this order as per annexure G, which was passed by the Government, not on account of any representation made by the petitioner, but as a result of the representation made by one Kadrolimath. In consequence of this order as annexure G, the petitioner was promoted as an officiating aval karkun or sheristedar. Thereafter, Kalpavrix, the present respondent 3, made a representation to the Government of Mysore that by reason of the order as per annexure G, his seniority had been adversely affected. He seems to have pointed out in his representation that the claim of Kadrolimath and others who were similarly situated, for seniority on the basis of the date of their passing the revenue qualifying examination, had been negatived previously by the Government of Bombay. He also seems to have contended that he was entitled to the protection arising under Sub-section (7) of S. 115 of the States Reorganization Act and that the order as per annexure G had the effect of adversely affecting the conditions of service which were protected under that provision. After re-examining the position the Government of Mysore passed the order dated 11 March, 1959 as per annexure H. In this order, the Government of Mysore stated that they could not review the orders which had already been passed by the Government of Bombay; they also further stated that in view of the proviso to Sub-section (7) of S. 115 of the States Reorganization Act, the conditions of service as they existed immediately prior to 1 January 1956 could not be altered to the disadvantage of the officials affected by the reorganization of the States. They also further stated that Kadrolimath had not brought to their notice the fact that his representation had been turned down by the Government of the former State of Bombay. On these grounds, the Government withdrew their previous order dated 10 March 1958 (as per annexure G).
5. In consequence of the Government order as per annexure H, the petitioner was one of the persons who was reverted from his officiating post of aval karkun, to his substantive post of a clerk. The contentions which have been urged by Sri Deshpande, on behalf of the petitioner, broadly stated, are that this order of reversion is, in reality, an order of punishment amounting to reduction in rank and that on account of non-compliance with the requirements of Art. 311(2) of the Constitution, the said order is liable to be struck down; that the State Government was wrong in its view that the previous orders passed by the State of Bombay could not be reviewed and that the Government of Mysore was wrong in its impression that its previous order as per annexure G amounted to a variation in the conditions of service in such a manner as to be offensive to the proviso to Sub-section (7) of S. 115 of the States Reorganization Act. So far as the last argument is concerned, we may state, at this stage alone, that in the view which we propose to take in the matter, it is not necessary for sustaining the order made by the Government as per annexure H to examine whether the previous order as per annexure G did or did not contravene the proviso to Sub-section (7) of S. 115 of the States Reorganization Act.
6. The order as per annexure H, in consequence of which the petitioner had to be reverted to his substantive post of a clerk, was neither intended nor has been expressed to be by way of punishment. In making the previous order as per annexure G, the Government of Mysore had proceeded on the assumption of certain facts; but, as a result of fresh materials placed by Kalpavrix in connexion with his representation, it was found that the assumption on which Government had proceeded to make its previous order as per annexure G were not correct and further that as rejection of ( ) the representations which had been made to it by Kadrolimath had not been brought to the notice of the Government of Mysore it proceeded to pass its order as per annexure G. It was, in the light of these new facts and circumstances brought to its notice, that the Government of Mysore found that its previous order as per annexure G had been passed under mistaken impressions and therefore it withdrew that order, as stated in annexure H. Both the order as per annexure G and the subsequent order as per annexure H related to a certain category of persons. It should be recalled that the present petitioner had not made any representation for obtaining the beneficial order as per annexure G. He was adversely affected by the subsequent order as per annexure H, not because the Government wanted to pass that order by way of punishing him, but only because he was one of the category of officials who were adversely affected consequent on the Government discovering that the previous order as per annexure G had been passed on certain mistaken impressions. It has not been seriously disputed before us by Sri Deshpande, that it was within the competence of the Government, on discovering that a previous order made by it was due to mistake and because of its ignorance of previous order (made by the Government of Bombay), to rectify that mistake by passing an appropriate subsequent order. In these circumstances, when the disadvantage resulting to the petitioner is not by virtue of any order of punishment directed against him, there is no question of the provision of Art. 311(2) of the Constitution being attracted. Therefore, we find no substance in the contention that there has been non-compliance with the requirements of Art. 311(2).
7. The other contention advanced on behalf of the petitioner is that the State Government was wrong in thinking that it could not review the previous order which had been passed by the Bombay Government rejecting the representation of the petitioner. It must be pointed out that this contention is liable to be disposed of on a short ground. The question as to whether it was or was not within the competence of the Government of the new State of Mysore to review the order passed by the ex-Bombay State Government, does not really arise for decision in this case; because, the petitioner had not requested the Government of Mysore to review the previous order passed by the Government of Bombay rejecting his representations. It was prior to the date of the reorganization of the States that the representations of the petitioner had been rejected by the Government of Bombay; subsequent to that date, and after the petitioner became an allottee to the new State of Mysore, he had not made any representation requesting the Government of the new State of Mysore to review the order which had been passed against him by the Government of the former State of Bombay. When that was so, the order passed by the Government of Bombay rejecting his representations, remained as a final order so far as his representations were concerned and there was no question of any review by the Government of the new State of Mysore. When such was the situation and when the petitioner was bound by the order which was passed by the Government of the former State of Bombay, he was not entitled to be promoted on the mere ground of his having passed the revenue qualifying examination earlier in October 1950 itself, whatever view the Government of the new State of Mysore may have chosen to take about the representations made by Kadrolimath. Thus it is clear that, in the circumstance above stated, the petitioner had no right for promotion on the mere ground of his having passed the examination earlier in October 1950. The resultant position is that, along with certain others, the petitioner got a benefit to which he was certainly not entitled, when the order as per annexure G was passed; when this benefit was subsequently taken away when the Government discovered the true position and passed the subsequent order as per annexure H, the petitioner was merely deprived of a benefit to which he was not legally entitled. The deprivation of such a benefit was opposed neither to the conditions of service nor to principles of natural justice. Sri Deshpande contended that before the petitioner was adversely affected the Government ought to have given him an opportunity to explain. It is no doubt true that it would have been better if the petitioner had been called upon the render whatever explanation he had, before he was reverted to his substantive post as a clerk. We have been taken by Sri Deshpande through the relevant resolutions and the instructions pertaining to the fixation of seniority, while the petitioner was a servant under the former State of Bombay. We do not find anything therein which justifies the contention that in respect of an official who had passed the revenue qualifying examination at some time prior to the examination held in February 1952, his seniority should be fixed with reference to the date on which he had passed the examination. On the other hand, it seems to be clear from annexures A and D and other relevant material, that even though a junior passed that examination at an earlier point of time, he would not get any place above his seniors in the gradation list, as long as those seniors passed either at the first or the second attempt, even though it may be at some examination subsequent to the one at which the junior had passed. Presumably, it was because of this position that the representation made by the petitioner to the Government of the former State of Bombay proved to be unsuccessful. We find no substance in the contention that the petitioner was entitled, by reason of his having passed the examination earlier in October 1950, to seniority. We have not been pointed out any rule or condition of service which requires that before being deprived of a benefit of the nature above referred to, and to which the Government servant was not legally entitled, he must necessarily be afforded an opportunity to explain, before the order taking away that benefit is made by the Government.
8. For the reasons above stated, we find that the petitioner is not entitled to any of the reliefs prayed for by him in this writ petition. This writ petition fails and the same is dismissed. Having regard to all the circumstances in the case, we consider it reasonable that the parties should bear their own costs; we order accordingly.