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Suranna (S.B.) Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2177 of 1964
Judge
Reported in(1967)ILLJ652Kant; (1966)2MysLJ372
ActsMysore Civil Services Rules - Rule 42B; Mysore Civil Services Rules - Rules 18 and 50(2)
AppellantSuranna (S.B.)
RespondentState of Mysore and anr.
Excerpt:
.....50 of mysore civil services rules - whether petitioner was substantively appointed in office of public service commission as per rule 18 (b) - whether petitioner was permanently transferred to public service commission as per rule 50 (2) - whether repatriation of petitioner to secretariat was not possible - post to which petitioner was selected was permanent post - as such his appointment was substantive appointment to permanent post under rule 18 (b) - further there was permanent transfer of petitioner to office of public service commission - held, impugned repatriation of petitioner made on basis that petitioner was on deputation in public service commission was impermissible. held see paras 18, 21 and 22. - income tax act,1961[c.a.no.43/1961] -- section 132 (4): [deepak..........government secretariat. 2. on 28 may, 1957, a letter was addressed by secretary to the mysore public service commission to the chief secretary of the state government requesting the government to make available the services of the petitioner for appointment as a personal clerk of the chairman of the public service commission in place of a certain sri narasimayya who was then holding that post. on that communication an order was passed by the government on 1 july, 1957 placing at the disposal of the commission the services of the petitioner in place of sri narasimayya. that order stated that sri narasimayya should work in exchange in the secretariat and that the petitioner would be entitled to draw the pay in the parent department and the duty allowance attached to the post. 3. on 19.....
Judgment:

Somnath Ayyar, J.

1. The petitioner before us was appointed as a stenographer in the Judicial Department of the former State of Mysore in the year 1936. Thereafter he worked in various other departments of the State on deputation, and eventually on 3 July, 1957 which is the relevant date he was a stenographer in the Mysore Government Secretariat.

2. On 28 May, 1957, a letter was addressed by Secretary to the Mysore Public Service Commission to the Chief Secretary of the State Government requesting the Government to make available the services of the petitioner for appointment as a personal clerk of the Chairman of the Public Service Commission in place of a certain Sri Narasimayya who was then holding that post. On that communication an order was passed by the Government on 1 July, 1957 placing at the disposal of the Commission the services of the petitioner in place of Sri Narasimayya. That order stated that Sri Narasimayya should work in exchange in the Secretariat and that the petitioner would be entitled to draw the pay in the parent department and the duty allowance attached to the post.

3. On 19 May, 1958, the Public Service Commission confirmed the petitioner as grade I stenographer in the office of the Public Service Commission with effect from 24 December, 1957. The relevant part of the order by which he was so confirmed reads :

'S. B. Suranna, Grade I stenographer, Mysore Government Secretariat, on other duty as personal clerk to Chairman, Public Service Commission, is confirmed in this office as grade I stenographer with effect from 24 December, 1957 in the post sanctioned in Government Order No. GAD (S-1) 78 SPN 57, dated 24 December, 1957.'

4. The next event of importance in the career of the petitioner in the service of the Public Service Commission, is what happened on 18 January, 1963. By an order made by the State Government on 5 June, 1962 one of the posts of stenographers in the office of the Mysore Public Service Commission was upgraded and it was converted into a post to which was applicable a selection grade of Rs. 225-10-285-15-375. This post had to be filed up by selection on the basis of seniority-cum-efficiency amongst the stenographers of the Public Service Commission office. To this selection post, the petitioner was appointed by the Public Service Commission on 18 January, 1963, and the order by which he was so appointed reads :

'S. B. Suranna, stenographer, office of the Mysore Public Service Commission, on a pay of Rs. 305 in grade Rs. 110-5-150-8-190-10-260-15-320, is selected and appointed to the upgraded post of stenographer, on a pay of Rs. 315 (pay fixed at next higher stage as per rule 42B of the Mysore Civil Services Rules) in grade Rs. 225-10-285-15-375 with effect from 11 January, 1963 (forenoon).'

5. The petitioner was in this post until 15 December, 1964 on which date the Public Service Commission made an order repatriating the petitioner to the Mysore Government Secretariat. Although this order does not say so in so many words, we are informed by both sides that the petitioner, under this order, has to hold a post on a pay-scale lower than that which is applicable to the selection post to which the petitioner was appointed in the office of the Public Service Commission.

6. It is this order of repatriation which is called in question in this writ petition. Sri Rama Jois appearing for the petitioner contends that when the petitioner was appointed to the selection post, he was appointed substantively to that post and acquired a lien over that post of which there can be no deprivation. This contention is founded on rule 18(b) of the Mysore Civil Services Rules which provides that a Government servant on substantive appointment to a permanent post acquires a lien on that post and ceases to hold the previously acquired lien on every other post.

7. The alternative submission was that there was a permanent transfer of the petitioner to the Public Service Commission when he was appointed as a personal clerk to the Chairman of the Commission, and, that in consequence, under rule 50(2) there was a severance of all association between the petitioner and his parent department.

8. It is seen from the service register of the petitioner that when he was in the Secretariat as a stenographer, his substantive appointment was shown to be that held by him in the Judicial Department. We are also informed by the Government Pleader that there was the preservation of the lien of the petitioner of the post held by him in the Judicial Department and that that lien has not until now been either removed or suspended. So, the argument constructed by the Government Pleader was that so long as there is no disappearance of the lien of the petitioner in the Judicial Department, it was not possible for the petitioner to contend that he had been permanently transferred to the Public Service Commission within the meaning of rule 50(2) or that he was appointed substantively to a post in the Public Service Commission within the meaning of rule 18(b).

9. It is seen from the Mysore Civil Services Rules that there are two processes by which a person belonging to one department of the State Government can go out of that department and become completely attached to another. One such process is by an appointment substantively to a permanent post in that other department. Such appointment under rule 18(b) creates a lien on the appointment to which he was so substantively appointed, and destroys the lien in the department to which he originally belonged. Likewise, the complete removal of the Government servant from one department to another is accomplished when he is permanently transferred from that department to another and there is a fixation of his pay in the new post, and, with such fixation his lien in the post in the parent department perishes.

10. The question before us is :

whether the petitioner was substantively appointed in the office of the Public Service Commission within the meaning of rule 18(b), or

whether he was permanently transferred to the Public Service Commission within the meaning of rule 50(2).

11. If there was any such appointment or transfer, as the case may be, he became a permanent employee in the Public Service Commission and his repatriation to the Secretariat was not possible.

12. From the discussion so far made, it becomes manifest that a lien in the parent department comes to an end and disappears, even without any order being made by any one for its removal, if a Government servant is substantively appointed to a permanent post in another department, or, if he is permanently transferred to another department and his pay fixed in the new post. In that view of the matter. The record made in the service register of the petitioner that his substantive post was in the Judicial Department and the fact that his lien in the Judicial Department was not displaced cannot have much significance.

13. It is contended by Sri Rama Jois that there was a permanent transfer to the Public Service Commission. In support of this argument, it was pointed out that the petitioner was sent to the Public Service Commission in exchange for Sri Narasimayya who was sent to the Secretariat. It is also seen from the record made available to us by the Government Pleader that after he went to the Secretariat Sri Narasimayya who was sent to the Secretariat. It is also seen from the record made available to us by the Government Pleader that after he went to the Secretariat Sri Narasimayya made an application to the Government that his services in the Secretariat may be treated as on deputation, and, that he should be permitted to draw a deputation allowance. On 21 August, 1957, that request was turned down. So, we were asked to say that Sri Narasimayya was not sent to the Secretariat on deputation, but that there was an exchange of stenographers between the Secretariat and the Public Service Commission and that in consequence Sri Narasimayya stood permanently transferred to the Secretariat, and that similarly the petitioner stood equally permanently transferred to the Public Service Commission.

14. It is to our mind proper to think that there was a transfer of the petitioner to the Public Service Commission when his services were made available to the Chairman of the Public Service Commission for being appointed as his personal clerk. That that is so, is clear from the letter addressed by the Chief Secretary of the State Government to the Secretary of the Public Service Commission on 12/16 April, 1962, the relevant part of which reads :

'As regards the point raised in your letter of 4 April, 1962, the date on which S. B. Surana, was transferred to the Public Service Commission may kindly be intimated. It is seen from the list of stenographers of the Secretariat that he was actually working in the Secretariat on 1 November, 1956 and was probably transferred to the Public Service Commission subsequently.'

15. The concluding paragraph of this communication which is not without importance reads :

'The rank of Surana in the appropriate cadre in the Public Service Commission may be fixed with reference to his transfer, in accordance with the seniority rules.'

16. So, in more than one place in this communication, there was an allusion to the transfer of the petitioner to the Public Service Commission, and the fact that after he was so transferred, he was confirmed in the office of the Public Service Commission on 19 May, 1958, is sufficient indication that the transfer, was a permanent transfer, especially since it was nowhere stated that there was only a temporary transfer. Now, after he was so transferred there was a fixation of pay-scale in the post held by him in the Public Service Commission and this was done by the order by which he was confirmed. So, the two ingredients which would attract rule 50(2) exist, and the resultant position emerging therefrom is that under that clause the petitioner ceased to have any connexion whatsoever with the post which he originally held in the parent department. Since this was what was accomplished statutorily by the rule, any record in the service register to the contrary can have no efficacy.

17. We are also of the opinion that there was a substantive appointment of the petitioner to a permanent post in the Public Service Commission when he was appointed to the post of a stenographer to which a selection grade was made applicable. This new grade was created by an order made by the Government on 5 June, 1962. The relevant part of that Government Order reads :

'The Secretary, Mysore Public Service Commission, in his letter cited third, has recommended that one of the six posts of stenographers in the office of the Public Service Commission may be upgraded to the selection grade of Rs. 225-10-285-15-375 for being filled up by selection according to service from among the stenographers in the Public Service Commission.

Under Regn. 16(2) of the Mysore Public Service Commission (Conditions of Service) Regulations, 1957, the Governor is pleased to upgrade one of the posts of stenographers in the office of the Public Service Commission to the selection grade of Rs. 225-10-285-15-375 for being filled up by selection on the basis of seniority-cum-efficiency among the stenographers of that office.'

18. It is the post to which this Government Order refers that the petitioner was selected for appointment by the Public Service Commission on 18 January, 1963. This selection was made on the basis of seniority-cum-efficiency. It is not disputed that the post to which he was so selected, was, a permanent post in the Public Service Commission and that that is so is clear from the Government Order to which we have referred. The order by which the petitioner was appointed, makes it clear that he was permanently appointed to that post since it does not say that he was appointed to officiate in that post or that the appointment was temporary. If that was how the appointment was made, we should have no hesitation in thinking that the appointment was a substantive appointment to a permanent post within the meaning of rule 18(b) which reads :

'Unless, in any case, it be otherwise provided in the rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.'

19. We cannot accede to the view pressed on us by the Government Pleader that there was no substantive appointment. The argument maintained was that since the petitioner continued to have a lien in the Judicial Department when he was appointed to the selection post, the existence of that lien was an impediment to the appointment being considered as substantive. We do not agree that that is how we should understand the appointment. The contention that the lien in the Judicial Department did not make the appointment substantive is to beg the question which has to be answered, since under rule 18(b) a substantive appointment by its own force removes the lien without any order for such removal.

20. When the petitioner was appointed to the selection post, what the Public Service Commission did, was, to search for a person who could be appointed to that post, who, on the basis of seniority-cum-efficiency was worthy of that appointment. If the Public Service Commission selected the petitioner for the appointment in that way, and appointed him to the post, every other antecedent circumstance including the fact that the petitioner was at one stage an employee of the Judicial Department or was a stenographer who was sent to the Public Service Commission on exchange basis, becomes irrelevant. The source of his appointment was his selection on the basis of his own merit and seniority, which alone governed and regulated the choice. On such appointment, even if thereon was any antecedent association between any other department and the petitioner, that association came to an end and he became the occupant of a permanent post in the Public Service Commission having been substantively appointed to it in the same way in which any other Government servant occupying an inferior post in any department becomes substantively appointed to a higher post either because of his success in a competitive examination or because of his selection under relevant statutory provisions. When a Government servant holding an inferior post in some department of the State is a candidate for a higher post such as the post of a Munsif or to a post in the Indian Administrative Service, and, the like, for which a selection is regulated by statutory provisions, and is selected, there would be small reason for thinking that there is no substantive appointment to the higher post or that there could be any outstanding nexus with the old post. The appointment of the petitioner was in no manner different.

21. We are, therefore, of the opinion that there was a permanent transfer of the petitioner to the office of the Public Service Commission when he was appointed on 3 July, 1957. In any event, we think that his appointment to the selection post on 18 January, 1963 which was a very important landmark in the petitioner's official career, was a substantive appointment within the meaning of rule 18(b). It is by these processes that the association between the petitioner and his parent department came to an end and there was an acquisition of a lien by him over the post occupied by him in the Public Service Commission to the exclusion of the lien which he had in the Judicial Department.

22. The impugned repatriation of the petitioner which was made on the basis that the petitioner was on deputation in the Public Service Commission was, therefore, impermissible. We allow this writ petition, and set aside the order made by the Public Service Commission on 15 December, 1964 ordering the petitioner's repatriation to the Secretariat. The petitioner has asked that we should set aside the communication made by the State Government to the Public Service Commission on 10 August, 1964 by which the repatriation was requested. We think it unnecessary to do anything about it since the communication incorporates only merely a request for such repatriation which we have held to be impermissible.

23. The position emerging from our order is that the petitioner is entitled to remain in the post which he occupied in the Public Service Commission in the Selection grade, until his transfer to some other department is accomplished under rule 20(a) under which when he is so transferred, he could be transferred only to a post which carries the same pay as that which he held in the Public Service Commission.

24. No costs.


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