1. The only relief pressed at the time of hearing, by Sri H. B. Datar, the learned counsel for the petitioner, in this writ petition under Art. 226 of the Constitution is that we should direct the State of Mysore and the Director of Printing, Stationery and Publication, Bangalore (respondents 1 and 2 respectively), to promote the petitioner as an overseer with effect from 1 December 1961 and as a supervisor with effect from 1 April 1963, and further to give him all consequential benefits by the issue of a writ of mandamus or any other appropriate writ, order or direction as this Court deems fit.
2. The material facts of this case are these : The petitioner joined service in the Government Central Press, Bangalore, as compositor in the year 1941. In 1945 he was promoted as a computer. On 1 July 1950, he was deputed to work in the Central Jail Press, Bangalore, as officiating foreman. He occupied that position as on other duty. On 13 November, 1957, the Mysore Public Service Commission selected the petitioner as foreman. Thereafter, he was relieved from his post as foreman in the Central Jail Press and he joined the Government Central Press on 5 December 1957 as foreman. From these facts, it is clear that the petitioner was working as foreman from 1 July 1950 though his selection as foreman by the Public Service Commission was effected only on 5 December, 1957.
3. Two posts of overseers fell vacant on 1 December, 1961. One of them was reserved for being filled up by promotion. The petitioner's case is that he should have been promoted to that post. He alleges that, instead of promoting him, respondent 2 had improperly promoted respondent 3, who was junior to him. It appears that the petitioner made several representations in that regard. But they went unheeded. Even when the petitioner's representations were pending consideration, respondent 2, by his office order No. 727/62-63, dated 29 March 1963, promoted respondent 3 as a supervisor. Respondent 3 joined service as works clerk on 20 April 1955. The public Service Commission selected petitioner as foreman on 13 November 1957. Respondent 3 was selected as foreman by the Public Service Commission on 9 January, 1958. He officiated as a foreman only from 10 September 1956. The petitioner, without doubt, was senior to respondent 3 as foreman. Hence prima facie the petitioner's case should have been considered for promotion before considering the case of respondent 3.
4. In support of his contention that his case should have been considered for promotion before respondent 3's case was considered for promotion, the petitioner relies on Rule 2(a) of the Mysore Government Servants' Seniority Rules, 1957, issued by the Government as per No. GAD (OM) 14 GRR/57, dated 7 February, 1958. That rule provides :
'Subject to the provisions hereinafter contained, the seniority of a person in a particular cadre of service or class of post shall be determined as follows : (a) Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post ...'
The petitioner contends that both himself and respondent 3 Were borne on the same cadre of service and therefore his substantive appointment as foreman being earlier than that of respondent 3, his claim for promotion was superior to that of respondent 3. It was urged on behalf of the petitioner that the action of respondent 2 in promoting respondent 3 ignoring the superior claims of the petitioner is violative of Arts. 14 and 16 of the Constitution.
5. In the counter-affidavit filed on behalf of respondent 1, the only defence taken is that in computing the length of service of the petitioner as foreman, his services as foreman in the press attached to the Central Jail cannot be taken into consideration and if that service is left out, he had not the required qualification on 1 December, 1961 for being promoted as an overseer. In other words, the case for the State is that the petitioner was not promoted on 1 December, 1961, because he did not possess the necessary qualification. We have to see whether the contention taken on behalf of the Government is correct.
6. The counter-affidavit filed on behalf of respondent 3 does not raise any additional legal plea. The other averments found in that counter-affidavit are not relevant for our present purpose.
7. Mysore General Service (Printing, Stationery and Publications Branch) Cadre and Recruitment Rules, 1960, framed under Art. 309 of the Constitution provide that the posts of overseers should be filled up partly by direct recruitment and partly by promotion. Fifty per cent. of the posts are reserved for the promotees from the cadre of foreman and fifty per cent. being available for direct recruitment. The qualifications prescribed for the promotees are :
(i) a pass in all the higher grade examination in printing (Madras) or a diploma in printing and allied subjects; and
(ii) five years' service as foreman in the department.
There is no dispute that the petitioner possessed, on the relevant date, the first of the two qualifications prescribed. The question for decision is whether on that date he had five years' service as foreman in the department. The petitioner contends that he had, whereas the respondents assert that he did not have. If he was qualified for being promoted as overseer on 1 December 1961, there is no dispute that he was qualified to be promoted as supervisor thereafter. Hence the crucial question for decision is whether the petitioner was qualified for promotion as overseer on 1 December, 1961, the date on which respondent 3 was promoted.
8. If the petitioner's service as foreman in the press attached to the Central Jail has to be taken into consideration, there is no dispute that the petitioner was qualified to be promoted as overseer on 1 December, 1961. But it was urged on behalf of the respondents that that service cannot be taken into consideration as it is not a service rendered 'in the department' thereby meaning 'in the department' of printing, stationery and publication.
9. The post of foreman attached to the Central Jail Press is required to be filled up by deputation from the Government press, as could be seen from the Mysore Jail Service Cadre and Recruitment Rules, 1959, which means that that officer has to be borne on the cadre of the Printing, Stationery and Publication Branch, but at the same time serve as on other duty in the department of the Mysore Jail Services. That being so, his permanent place will be in the Department of Printing, Stationery and Publication,
Rule 53(b)(i) of the Mysore Civil Services Rules provides :
'Service in another post other than a post carrying less pay referred to in Clause (i) of rule 20A, whether in a substantive or officiating capacity, service on deputation out of India and leave except extraordinary leave taken otherwise than on medical certificate shall count for increments in the time-scale applicable to the post on which the Government servant holds a lien, as well as in the time-scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended.'
To the present case rule 20A does not apply.
10. In State of Mysore v. M. H. Bellary [1966 - I L.L.J. 50] the Supreme Court was called upon to consider the true scope of Rule 50(b) of the Bombay Civil Service Rules. That rule is similar to rule 53(b)(i) referred to earlier. Interpreting that rule, the Supreme Court laid down that the service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of rule 50(b); so long, therefore, as the service of the employee is the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason that that satisfactory service and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotions which are open on seniority-cum-merit basis. That decision governs the facts of the present case.
11. Therefore, it is clear that respondents 1 and 2 erred in not taking into consideration the services of the petitioner as foreman in the press attached to the Central Jail while considering the question of promotion to the post of overseer. If that service had been taken into consideration, as it ought to have been, there is no doubt that the petitioner was far senior to respondent 3 as a foreman. It is not the case of respondents 1 and 2 that the petitioner was not suitable for promotion. Promotion had been denied to the petitioner solely on the ground that the services rendered by him as foreman, as an on other duty in the press attached to the Central Jail, cannot be taken into consideration. This view is obviously wrong.
12. But, what is disturbing in this case is the attitude of respondent 2. He persistently preferred to promote respondent 3 over the head of the petitioner without any just cause. That is not all. In response to the representations made by the petitioner the Government wrote to respondent 2 on 31 January, 1963 as follows :
'[Subject. - Representation from P. M. Nanjundayya and M. P. Bommannayya, foreman, in the matter of promotion as overseer.]
I am directed to refer to the correspondence resting with your letter No. A-651, dated 17 October, 1962, on the subject noted above and to state that according to rule 30 of the rules accompanying G.O. No. 6.105 C.R.R. 1-34-1, dated 3 July, 1964, a member of a service shall take rank in any grade of the service according to the date on which he is substantively appointed to such grade. Therefore, the dates of appointments of P. M. Nanjundayya and M. P. Bommannayya as foreman will have to be taken for fixing the seniority as both of them were selected by the Public Service Commission, provided further none of them has been confirmed so far. The Mysore Government Servants' Seniority Rule 57 published on 7 February, 1958, under G.O. No. GAD. (OM) 14 C.R.R./57, dated 7 February, 1958, do not have retrospective effect; seniority not settled till that date, will have to be settled in accordance with these rules.
2. I am therefore to request to take immediate action to fix the seniority of the two officials in the light of the principles stated above. After this is done, the senior of the two officials may be promoted to the promotional vacancy of overseer, provided he is qualified for such promotion under cadre and recruitment rules of your department.
(Sd.) JAYAKUMAR ANAGAL,
Under Secretary to Government,
In that letter the Government took a correct stand. It required respondent 2 to take immediate action to fix the inter se seniority of the petitioner and respondent 3 in the light of the principles enunciated in that letter. It further asked respondent 2 of the two officials may be promoted to the promotional vacancy of overseer, provided he is qualified for such promotion under the cadre and recruitment rules of the department. It is not known whether the Government's directive was obeyed. This matter requires investigation.
13. In the counter-affidavit filed by the Government, in this case, it took the stand as mentioned earlier, that on 1 December, 1961, the petitioner was not qualified to be promoted as overseer. That counter-affidavit was filed on 18 June, 1965. It may be remembered that M. H. Bellary case [1966 - I L.L.J. 50] referred to earlier, to which the Government of Mysore was a party, had been decided by the Supreme Court on 25 March 1964. But, even thereafter the Government and the Director did not become wiser. The Director persisted in his unreasonable attitude and the Government continued to be callous.
14. For the reasons mentioned above, this petition is allowed. A writ of mandamus will be issued to respondents 1 and 2 directing them to promote the petitioner as an overseer with effect from 1 December 1961 and as a supervisor with effect from 1 April 1963 and to give him all consequential benefits.
15. The petitioner is entitled to his costs of this petition. Advocate's fee Rs. 100. A copy of this judgment will be sent to the Chief Secretary to the Government of Mysore, for information.