1. The main relief which the petitioner has prayed for in this writ petition is to fix his seniority above that of respondents 3, 4 and 5 and issue a direction to make necessary corrections in the seniority list of Deputy Account^ ants (Exhibit L.).
2. The case of the petitioner is that he joined service as First Division Clerk on 10-3-1953 in the Treasury Branch of the Revenue Department of the former State of Mysore. When the former State of Mysore created separate Treasury cadre in 1954 the services of the petitioner stood transferred to the Treasury cadre with effect from 1-1-1954. Respondents 3, 4 and 5 are officers who were working in the Revenue Department but under the Treasuries in the South Kanara District of the Madras area which has come into the New State of Mysore under the provisions of the States Reorganisation Act. The Government of the New State of Mysore, took a decision on 25th May, 1961 to constitute a new Treasury cadre in the interest of efficiency of Treasury work. Accordingly, the State Government passed an order on 25th May, 1961 (Exhibit V. filed by the respondents with the counter-affidavit). We shall refer to the relevant portions of this order, presently. The Governor, in exercise of his powers under the proviso to Article 309 of the Constitution promulgated Rules called the Mysore General Service (Treasury Branch) (Recruitment) (Special) Rules,1961, by Notification dated 16th January, 1962. These Rules were amended by subsequent Notification dated 6th August 1962. The Rules contemplated the setting up of selection committees consisting of the officers named therein for each of the Divisions to make selection of eligible officers for the various posts contemplated under the order creating the new cadre.
3. It is under these circumstances that the following facts are required to be borne in mind. The petitioner as already stated was transferred to the Treasury cadre as First Division Clerk with effect from 1-1-1954. Respondents 3, 4 and 5 were appointed as First Division Clerks respectively on 28-1-1956, 28-3-2956 and 19-10-1957. The petitioner was promoted as Deputy Accountant by an order (Exhibit A) dated 19th December. 1961, 'purely as a tentative measure and subject to revision when the Inter-State Seniority list in respect of this Division of I Division Accountants, Treasury Cadre, is prepared after the formation of the common Treasury Cadre to the New State of Mysore is finalised'. Subsequent order (Exhibit B) dated 15-9-1962 was issued by the Divisional Commissioner, Mysore Division, Mysore, on 15-9-1962 stating that the tenure of the officers named in the order was from in-charge arrangement to officiating arrangement with effect from the dates noted against each of them. So far as the petitioner is concerned, the date mentioned is 9-1-1962. The effect of this order is that the petitioner was appointed as officiating Treasury Sheristedar with effect from 9-1-1962.
4. In this connection It is necessary to ascertain the position of the aforesaid respondents when the Government ordered creation of a new Treasury cadre by its order dated 25th May, 1961. It is necessary to read the first paragraph of this order which is as follows:
'Government direct that the Gazetted and non-gazette staff of treasuries who are still borne in the Revenue Cadre and whose services are required whole-time for Treasury work be transferred to the Treasury Cadre, with effect from 1st June, 1961. The cadre and Recruitment Rules of the treasuries have been published in Notification No. GAD 24 ORR 59 dated 28th January, 1961.'
The Rules referred to in this order are obviously the Mysore General Service (Treasury Branch) (Cadre and Recruitment) Rules. 1961. It is obvious from this paragraph that when the Government took a decision to create a new Treasury Cadre in the entire State of Mysore, it was intended that the Mysore General Service (Treasury Branch) (Cadre and Recruitment) Rules, 1961, were to be made applicable even to those who were to be brought into that cadre or promoted to any of the posts in the cadre. The plain meaning of this paragraph is that with effect from 1st June. 1961, all those officers in the areas other than the Mysore area, who were borne in the Revenue Cadre but whose services were being taken as whole-time services in the Treasury work were to be transferred to the Treasury Cadre with effect from 1-6-1961. Paragraph 7 of the said order of 25th May, 1961 is also relevant and deserves to be read here. It reads:--
'The non-gazette personnel borne in the revenue cadre and now working on the Treasury side will continue in their posts pending selection by a committee to be appointed for the purpose. Filling up of the First Division vacancies due to the upgrading of some of the Second Division posts will also be regulated by that committee. The posts of Treasury Sheristedars newly created will be filled in, from the list of persons eligible for promotion to such posts under the Cadre and Recruitment Rules.'
The manifest intention of paragraph 7 of this order was that the non-gazette personnel borne in the Revenue Department but working on the treasury side were to continue in their posts pending selection by the committee.
5. It is not necessary for our purpose to go into the contents of the Mysore General Service (Treasury Branch) (Recruitment) (Special) Rules, 1961 and the amendment issued by notification dated 6th August, 1962. As per Government order dated 25th May, 1961, committees were constituted for different areas and certain officers including the respondents were interviewed. The selections made by the Selection Committee are evidenced by the proceedings of the Government of Mysore, issued under Order No. FD 84 RTE 62 dated 7th December, 1962. By this order the Government were pleased to approve the selections made by the committees as specified in the said order. It would be seen from the portion of this order dealing with the South Kanara District that respondents 3 to 5 and two others were selected as Treasury Sheristedars. This order directed, by note 3, that 'these selections will have effect from 1-6-1961 except in the case of those promoted to the selected posts, subsequently.' Note 4 states, 'in the case of officials selected to the posts of Head Accountants Treasury Sheristedars and I and II Division Clerks, their previous service in equivalent posts will count for the purpose of seniority in the Treasury Cadre.' One fact which requires to be noticed for the purpose of this Writ Petition is that the previous service of the officials in equivalent cadre was to count for the purpose of seniority in the Treasury cadre. On 13th December, 1962, the Divisional Commissioner, Mysore Division, Mysore, issued an Official Memorandum posting respondents 3 to 5 as Treasury Sheristedars located in different places mentioned in the order. We may recall at this stage that the petitioner was posted as officiating Treasury Sheristedar with effect from 9-1-1962.
6. It is here that the question of seniority of these officials comes up for consideration. When the Department prepared seniority list after these proceedings on 27-12-1962, the petitioner came to be shown below the three respondents. The petitioner and others made representations and thereafter a revised provisional Division-wise seniority list of Deputy Accountants, Treasurers, Treasury Sheristedars and Taluk Head Accountants as on 1-1-1963 was made (vide Exhibit F). In this list, the petitioner is at serial No. 25, while the three respondents are respectively at serial Nos. 46, 47 and 48. The respondents then made representations to the Government and that list came to be revised and another provisional Division-wise seniority list came to be made on 16-8-1965, the position being as on 1-7-1965- It is necessary to mention that in the meanwhile, the Mysore General Service (Treasury Branch) Special Seniority Rules, 1965 came to be made on 25th June, 1965. The preamble to the above notification states that 'it was expedient to make Special Rules for the determination of the seniority of the persons selected and appointed to the categories of posts specified in the said Rules, vis-a-vis persons holding such posts before such appointments and to review promotions made on or after 1st June, 1961.' Under normal circumstances, the seniority should have been regulated under the General Rules of Seniority, but the Government seems to have thought it necessary to promulgate the Special Seniority Rules taking into consideration the fact that the new cadre came into effect from 1-6-1961 and the other fact that officers working in the old Mysore area, governed by General Rules of Recruitment, had been promoted under the latter Rules.
7. Very lengthy arguments have been advanced before us by both parties about the interpretation of Rules 3 and 4 of the Mysore General Service (Treasury Branch) Special Seniority Rules, 1965. Rule 3 provides for the determination of seniority of officials. Rule 3 (b) (ii) is relevant for the purpose of determining the seniority of the parties to the petition who were appointed as Treasury Sheristedars on or after 1-6-1961. That provision reads:--
'Where the appointment of the said selected person is from any class or grade of service lower than the corresponding class or grade of service of the Treasury service, the seniority of the said person in the class or grade of service to which he is appointed shall be determined, by assigning to such selected person a rank just above the person in Treasury Service promoted under the Treasury General Recruitment Rules from the class or grade of service of the Treasury service corresponding to the class or grade of service held by such selected person before such selection whose length of continuous service in the class or grade of service in the Treasury Service from which the said person in Treasury Service was promoted, is less than that of the selected person.'
According to this Rule, in determining the seniority of persons selected under the special Recruitment Rules, the following factors have to be taken into consideration:
'(1) The class or grade of service held by the selected persons prior to their selection; and
(2) the length of continuous service in the class or grade of service in the Treasury Service from which the person was promoted.'
The Rule lays down that such selected persons should be placed above the persons promoted under the General and Recruitment Rules with lesser continuous service than that of the selected persons. The officers entrusted with preparation of this seniority list seem to have overlooked the last part of that Rule which says that the selected persons shall be placed above the persons appointed under the General and Recruitment Rules, who were having lesser service than that of the selected persons in the previous cadre. We have already pointed put that the petitioner was appointed in the lower grade on 10-3-1953 as a direct recruit, while the respondents were appointed as First Division Clerks respectively on 28-1-1956, 28-3-1956 and 14-12-1957 in the Revenue Department and were working under the Treasury. In this view, the three respondents ought to have been placed below the petitioner in the seniority list.
8. It is contended on behalf of the respondents that Rule 4 gives them seniority over the petitioner as under that Rule all promotions that had been made were required to be reviewed and promotions or reversions were to be effected as and when the cases decided in the light of the Rules required. Before we proceed further, it is necessary to mention at this stage that Rule 4 came to be amended on 6-6-1967 after the writ petition had been filed on 14-2-1966. As the Rules stood prior to the amendment, there was absolutely no difficulty in placing the petitioner above these respondents. But certain words, viz., 'or persons possessing the qualifications prescribed in the said Rules' came to be inserted in the latter Clauses of Rule 4 between the words 'promotions shall be made' and the words 'on the basis of the seniority list .....' The amended Rule reads as follows:--
'4 Review of promotions:--
Notwithstanding anything contained in the Treasury General Recruitment Rules, or any rules relating to the conditions of service applicable to Government servants in the Treasury service, recruitment by promotion made to any post in the Treasury service on or after the 1st June, 1961 shall in accordance with the said recruitment Rules, be reviewed and promotions shall be made of persons possessing qualifications prescribed in the said Rules on the basis of the seniority lists prepared in accordance with the provisions of Rule 3, and the seniority of persons promoted accordingly shall be determined as if they had been promoted on the date on which they would have been promoted, if these rules were in force with effect from the 1st day of June, 1961.
Provided that where on a review of a promotion made under this Rule (i) any person is reverted to a lower class or grade of service, such reversion shall be without prejudice to any emoluments drawn by him before such reversions.
(ii) Any person if promoted to a higher class or grade of service, such person shall not be entitled to the emoluments of the post to which he is promoted from any date prior to the date of his joining the post to which he is promoted.'
It is obvious that this Rule does not lay down any new principles for determining seniority. The promotions have to be worked out of all persons after determining their seniority in accordance with the provisions of Rule 3. The first part of this rule lays down that notwithstanding the provisions contained in the Treasury General Recruitment Rules or any other Rules in that behalf, promotions made to any post in the Treasury Service on or after 1st June, 1961 have to be reviewed as if these Rules were in force from 1st June, 1961. The second part of this Rule lays down that promotions shall be made of persons possessing the necessary qualifications in accordance with the seniority determined under Rule 3. The two provisos refer to the recovery or payment of emoluments to persons recruited or persons promoted and lay down that persons reverted to lower service or grade shall not be required to credit the emoluments already drawn and persons promoted from any prior date would be entitled to emoluments from the date of joining the post to which they are promoted.
9. On the basis of the amended Rule, It was contended for the respondents that the petitioner not having acquired the qualification by passing the S.A.S. examination on 9-1-1962, was not eligible to be promoted till after that date under the General Rules of Recruitment pertaining to the service and that the appointments of respondents having been given retrospective effect as they were duly qualified, the petitioner must yield to the respondents in the matter of seniority. In reply to this argument, Mr. Rama Jois, learned Advocate for the petitioner submitted that the prescription of the departmental examination for promotion to his client was a variation of his old condition of service with-out the prior approval of the Central Government and was therefore inoperative. In support of this contention he places reliance on the decision of this Court in G.K. Radhakrishna v. State of Mysore, (1969) 1 Mys LJ 199 in which passing of the accounts test higher and the S.A.S examination prescribed by the Government notification of July 30, 1959 on the strength of which the petitioner therein was denied promotion, came up for consideration.
Their Lordships held on the facts of that case that, that examination had been prescribed only for the crossing of the efficiency bar and not for promotion in the old State of Mysore. They further held that the prescription of departmental examination for promotion of an allottee to a higher post in variation of his old conditions of service to his disadvantage could not be made except with the previous approval of the Central Government. The Supreme Court had to consider the validity of the prescription of departmental examination for promotion of Assistants to posts of Senior Assistants in the Mysore Government Secretariat. In Mohammed Bhakar v. Y. Krishna Reddy, Civil Appeal No. 811 of 1968, D/- 15-4-1968 (SC) their Lordships held that the imposition of the passing of departmental examination as a condition for promotion to a person who is allotted to the New State of Mysore, if such condition was not to be found in his parent State, would be in violation of Sub-section (7) of Section 115 of the States Reorganisation Act, unless the prior approval of the Central Government is obtained. Their Lordships allowed the appeal and directed the State Government to obtain the approval of the Central Government and thereafter act accordingly. In the present case no such approval to the imposition of the passing of S. A. S. examination has been obtained and the petitioner therefore cannot be said to have suffered from any disability till his promotion on 9-1-1962. Rule 4 therefore does not affect the seniority of the petitioner even in the promotional cadre.
10. In the result, we allow the writ petition and direct that that portion of the seniority list which places the petitioner below respondents be quashed. We further direct the State Government to place respondents 3, 4 and 5 below the petitioner. No costs.